In the recent Labour Court judgement of Edcon Ltd v Cantamessa and Others  2 BLLR 186 (LC), the question of employees making racist remarks was considered. The facts can be summarised as follow:
After watching a documentary programme on television, the employee proceeded to refer to the Government as ”monkeys” on her Facebook page, which page also clearly identified her as an employee of Edcon (the employer). After a few weeks after it was posted, it was discovered, and a complaint was lodged, after which the employee was charged in a disciplinary hearing and subsequently summarily dismissed for making an inappropriate, racist comment on Facebook.
The employee referred a case of unfair dismissal to the CCMA, where the Commissioner found that the dismissal was unfair.
The arbitrator found that the employee’s conduct was in contravention of her employer’s social media policy. This policy, however, only related to the posting of derogatory remarks using the employer’s resources and if it is made during working hours (which policy was subsequently amended and now includes private conduct as well). In this case, however, the employee made the comment while on leave, thus not during working hours, and from her personal computer, thus not using the employer’s resources. Although the employee’s employer was indicated on her Facebook profile, it was held by the arbitrator that no reasonable reader (as an analogue test to the reasonable person test) would associate the employee’s comment to her employer. The arbitrator further found that no evidence was led that the employer suffered any losses or damages as a result of the employee’s post, as the employer’s name was not brought into disrepute and she did not act in contravention with the employer’s social media policy. Further, the arbitrator found that the employer acted inconsistently, as the co-employees who liked her post were only given final written warnings.
Edcon opted to take the CCMA’s decision on review. The Labour Court was of the opinion that an employer has the right to follow disciplinary action against an employee for personal conduct which fell outside of such an employee’s working hours that has no bearing on the employee’s work duties if there is a nexus between the conduct of the employee and that employee’s workplace. The LC had to consider whether this fact is also present in the case in front of them.
Although the LC corroborated the CCMA’s decision that Edcon’s policy was not drafted to stretch beyond an employee’s working hours and beyond the employee’s workplace, the LC differed from the CCMA’s decision in so far as it found that the employee linked herself with Edcon as her employer on Facebook, which also linked her comment that she posted to Edcon.
The Labour Court also differed from the CCMA’s decision in so far as it found that the employee did put Edcon at risk of suffering severe reputational harm, as the employee’s post was read by the public and negative social media attention. The adverse effect that the employee’s post had on Edcon went further to the extent that customers indicated that they would take away business from Edcon. The Court further held that the CCMA wrongly found that financial losses were not proven by the employer, as the employee was not charged with causing financial losses to her employer. There were also a number of customers who threatened to take their business away.
The Court further held that in the context of South Africa’s history, the word ‘monkey’ is racist and did not correlate with Edcon’s values and the employee, as a senior employee with a subsequent higher duty to take care, conceded that her comment could have offended others. The employee’s right to free speech does not include the right to offend or cause harm to the South African Government, nor does it afford her the right to post racial slurs on Facebook. The Court justified their finding that Edcon did not act inconsistently in the application of its disciplinary code in this matter by means of stipulating that co-employees can be treated/disciplined differently/accordingly, referring to their participation in the employee’s misconduct.
The Court concluded that the employee’s dismissal was substantively fair and found the CCMA’s arbitrator’s decision to be unreasonable, as he failed to apply his mind to all the facts present, which was subsequently set aside.
This case law can be relevant, especially now during the lockdown period, for employers whose employees work from home and makes themselves guilty of misconduct such as the ones mentioned in this article, which misconduct has an adverse effect on the company, reputational, financial or otherwise.
Article by: Johan van Dyk
Dispute Resolution Official – Cape Town