Employers are increasingly confronted with difficult questions about employee conduct on social media and messaging platforms.

A recent Labour Court judgment in Erarite (Pty) Ltd t/a Khayelitsha Superspar v Commission for Conciliation Mediation and Arbitration and Others which dealt with a bakery manager dismissed for posting a biblical verse on his WhatsApp status, highlights the importance of context, proportionality, and fairness when disciplining employees for online conduct.

The Labour Court ultimately confirmed that, although the employee exercised poor judgment during a period of heightened xenophobic tension, dismissal was too harsh a sanction.

Background to the dispute

The matter arose after a Bakery Manager employed by Erarite (Pty) Ltd t/a Khayelitsha SuperSpar posted a verse from Deuteronomy on his WhatsApp status during a period of significant unrest and xenophobic tension at the workplace.

The employee, a Zimbabwean national, posted a biblical passage stating that foreigners would rise above locals and become rulers over them. The post appeared both on his personal WhatsApp status and on the management WhatsApp group status.

At the time, tensions in the workplace were already high following allegations on a Facebook group accusing the employer of employing foreign nationals. Protest action had allegedly been encouraged, and several employees linked to the Facebook activity were disciplined.

The employer viewed the WhatsApp post as inflammatory and divisive. Following a disciplinary hearing, the employee was dismissed.

He subsequently referred an unfair dismissal dispute to the CCMA.

CCMA finds dismissal substantively unfair

During arbitration proceedings, the commissioner accepted that the employee had deliberately posted the biblical verse and rejected his explanation that the management-group posting occurred accidentally due to a phone malfunction.

Importantly, however, the commissioner distinguished the employee’s conduct from conduct amounting to hate speech or incitement to violence.

The commissioner found:

  • The post was provocative and inappropriate;
  • The employee acted out of frustration after being targeted as a foreign national;
  • The conduct constituted a serious error of judgment;
  • The employee had disobeyed instructions to avoid inflaming tensions;
  • However, the post did not amount to incitement to violence.

The commissioner concluded that dismissal was disproportionate and that a final written warning would have been a more appropriate sanction.

Because the employee sought compensation rather than reinstatement, the commissioner awarded him three months’ compensation.

Employer takes the award on review

The employer approached the Labour Court seeking to review and set aside the arbitration award.

The employer argued that the commissioner:

  • Ignored material evidence;
  • Failed to appreciate the seriousness of xenophobic tensions in the workplace;
  • Underestimated the harmful impact of the WhatsApp post;
  • Failed to recognise that the trust relationship had broken down;
  • Reached an outcome that no reasonable commissioner could reach.

The employer further attempted to compare the conduct to racism and gender-based violence.

Labour Court upholds the CCMA Award

The Labour Court dismissed the review application.

In doing so, the Court reaffirmed the well-established review test in Sidumo v Rustenburg Platinum Mines Ltd, namely that a reviewing court may not interfere merely because it would have reached a different conclusion. The question is whether the commissioner’s decision was one that a reasonable decision-maker could reach.

The Court held that the commissioner:

  • Properly understood the nature of the misconduct;
  • Appreciated the volatile workplace environment;
  • Accepted that the employee acted deliberately;
  • Correctly distinguished provocative speech from incitement to violence;
  • Was entitled to determine that dismissal was too harsh.

The Court emphasised that the commissioner had clearly recognised the seriousness of the conduct and had described the employee as “the author of his own misfortune.”

Nevertheless, the commissioner was still entitled to conclude that progressive discipline, rather than dismissal, was appropriate.

Key legal principles emerging from the Judgment

1. Social media misconduct must be assessed contextually

This judgment confirms that social media misconduct cannot be evaluated in isolation.

The surrounding circumstances, workplace tensions, employee motivation, and actual impact of the conduct all remain relevant when determining an appropriate sanction.

2. Provocative conduct is not automatically hate speech

The Labour Court drew an important distinction between offensive or provocative content and speech that constitutes incitement to violence or hate speech.

While the WhatsApp post was inappropriate and inflammatory, the commissioner was entitled to find that it did not cross the threshold into unlawful hate speech.

3. Dismissal is not always the appropriate sanction

Even serious misconduct does not automatically justify dismissal.

Commissioners and courts must still consider:

4. Review applications face a high threshold

The judgment serves as another reminder that Labour Court reviews are not appeals.

An employer cannot succeed merely by showing that another decision may also have been reasonable. The applicant must show that the commissioner’s outcome was unreasonable to the extent contemplated in Sidumo.

Disagreement with a commissioner’s value judgment on sanction is generally insufficient.

Why this Judgment matters for employers

This case is particularly relevant for employers managing workplace conflict arising from:

  • Xenophobia;
  • Political tensions;
  • Religious expression;
  • Social media activity;
  • WhatsApp group communications.

Employers should ensure that:

  • Workplace social media policies are clear and consistently enforced;
  • Employees understand the consequences of inflammatory online conduct;
  • Disciplinary action remains proportionate;
  • Evidence of reputational harm or breakdown in trust is properly presented during disciplinary proceedings and arbitration.

Failure to do so may result in dismissals being overturned, even where employee conduct is clearly inappropriate.

Conclusion

The Labour Court’s decision reinforces the principle that fairness remains central in dismissal disputes involving social media misconduct.

Although the employee’s WhatsApp post was found to be provocative and ill-judged during a period of xenophobic tension, the commissioner’s conclusion that dismissal was too harsh fell within the bounds of reasonableness.

The case illustrates that context, proportionality, and progressive discipline remain critical considerations in South African labour law.

For employers, the judgment is an important reminder that disciplinary action for social media misconduct must be carefully balanced against the employee’s right to fair treatment.

Article written by Craig Berkowitz
8 May 2026

Craig Berkowitz is a specialist labour lawyer and Acting Judge in the Labour Court of South Africa with extensive experience in CCMA arbitrations, disciplinary hearings and Labour Court litigation.

📞 083 453 1822
✉️ cblaw@netactive.co.za

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