With the whole of South Africa having been subjected to a lockdown, social media platforms are not only a more popular source of entertainment than ever before, but they are also very often an outlet for venting frustrations.
Given the right to freedom of expression, the question is this – is an employee who posts comments on Facebook, whilst the employee uses their own computer and data; where the comments made have nothing to do with the employee’s duties, and where the comments are made while the employee is on leave, beyond the reach of an employer’s authority to discipline that employee?
This a matter that the CCMA and thereafter the Labour Court recently had to grapple with.
The facts of the case were that the then-President, President Zuma, had replaced Finance Minister Nhlanhla Nene with Minister Des van Rooyen. President Zuma subsequently replaced Minister van Rooyen with Minister Pravin Gordhan as the Minister of Finance.
This cabinet reshuffle was all over public media. The television show, Carte Blanche, also ran a programme on the reshuffling. On the same evening of that show, and whilst on annual leave, the employee published a post on her private Facebook account. The exact words that were used in the Facebook post are quoted verbatim in the Labour Court judgment, and which words used were the following:
“‘Watching Carte Blanche and listening to these fucking stupid monkeys running our country and how everyone makes excuses for that stupid man we have to call a president … President my fucking ass! #zumamustfall! This makes me crazy ass mad.”’
At the time that the employee published her post, her Facebook profile contained the name of the company that employed her. A few weeks later, the company received an email complaining about the Facebook post; comments about the post then appeared on Twitter, and an article about the post also appeared in a newspaper.
The employee attended a disciplinary enquiry at which she was found guilty of making an inappropriate racist comment on Facebook and was dismissed.
The employee referred an unfair dismissal dispute to the CCMA.
The commissioner at the CCMA found that the dismissal was substantively unfair and awarded the employee 12 months’ compensation because when the employee published the post, she was not at work and the company’s social media policy, internet policy and code of ethics did therefore not apply.
The company instituted a review application in the Labour Court.
Before assessing the merits of the matter, the court re-confirmed 2 important principles viz. 1) where misconduct does not expressly fall within the employer’s disciplinary code, the employer may still be entitled to discipline an employee, and 2) when the misconduct complained of occurs outside of the workplace, this does not necessarily preclude the employer from disciplining the employee.
The court then stated that what was important was to firstly determine the connection between the misconduct and the employer’s business, after which it was then for the employer to prove to what extent the trust relationship necessary to sustain an employment relationship had been impacted.
The court found that whilst the comments themselves did not relate to the employment relationship, the success of the company’s business was influenced by how it marketed itself to the public and therefore having a good name was essential for the company. The court found that once the employee’s identity as a buyer for the company became known, that there was then a risk that the name of the employer could be brought into disrepute. Therein lay the connection between the conduct of the employee and her employer.
The court then turned to the facts of the case and found that when the employee took to Facebook to post her remark, the government of the day was largely constituted by black citizens and in respect of whom racial slurs were used. The court found that as the remark was a racial slur, that the company was entitled to take disciplinary measures against the employee, lest the company’s name be brought into disrepute for tolerating racism.
The court acknowledged that the employee enjoyed the right to freedom of expression and the right to criticise the government where she felt it was erring. However, what right the employee did not have, was the right to resort to racial slurs to vent her anger, and which slurs constituted incitement to racial disharmony at the workplace and had the potential of seriously harming the company’s business.
Despite more than 20 years of experience and a clean record, the dismissal was regarded as an appropriate sanction. The Court, therefore, found that the commissioner had reached a decision that no reasonable decision-maker could have reached, and the award was accordingly reviewed and set aside and replaced with an order declaring that the dismissal was substantively fair.
The judgment not only demonstrates the reach of an employer’s authority to discipline an employee, but also the value of a review application in the Labour Court.
With the correct expert legal advice and guidance, review applications can successfully be instituted in order to review and set aside arbitration awards.