While most South African employees have a general idea of what they can and can’t get away with in the privacy of their own homes, the nature of social media means that these issues often bring their employers under the spotlight.
This was the case in a recent Commission for Conciliation, Mediation and Arbitration (CCMA) dispute, which dealt with the dismissal of an employee who posted alleged racist comments on Facebook.
According to Jacques van Wyk, director and labour specialist at Werksmans Attorneys, the employee faced two charges in the case.
The first charge concerned the use of abusive and racist language and/or grossly inappropriate conduct resulting from a racist and/or derogatory statement the employee made on Facebook, where he stated: “Kill the Boer, we need to kill these”.
The second charge concerned the employee bringing the company’s name into disrepute, as a client complained about the Facebook comment to the employer. At the hearing, the employee was found guilty of the first charge and dismissed for misconduct.
“The employee argued that his dismissal was substantively unfair, as he was not guilty of the offence for which he was dismissed,” said van Wyk
“He argued further that if he was guilty, the sanction of dismissal was inappropriate, as he was not aware of the fact that he may not post comments on Facebook. The employee also challenged the procedural fairness of his dismissal.”
According to van Wyk, the Commissioner held that the dismissal was procedurally fair (the employer followed the correct steps before dismissal).
Turning his attention as to whether the employee’s dismissal was substantively fair, he acknowledged two previous cases:
- SA Equity Workers Association on behalf of Bester v Rustenburg Platinum Mine and Another (2017) – where the court held that race descriptors are neutral and it is only by locating them in a ‘pejorative’ context that their use should be condemned as racist. The Commissioner held that the employee’s Facebook post was placed in a pejorative context.
- AfriForum and another v Malema and another (2011) – where the court held that the meaning of alleged racist or derogatory words is what the reasonable person would ascribe it to be.
“The Commissioner held that in this instance, the meaning of ‘kill the boer’ can largely and objectively be interpreted by a reasonable person to mean: kill white people.
“Accordingly he found that the employee’s Facebook post was racist, and that the applicant was guilty of the charge for which he was dismissed,” said van Wyk.
Based on previous cases the Commissioner also noted that it made no difference to the case that the employee was not at work when he posted the comments or that the comment was not directed towards a fellow employee, said van Wyk.
Highlighting the importance of the this case, van Wyk said that there are now two considerations when determining whether to take disciplinary action against an employee where the employee allegedly makes racist/or derogatory statements outside of work.
“The first question is whether the statement has a pejorative context that a reasonable person would ascribe as being racist and/or derogatory,” he said.
“The second question is whether the employee’s conduct has a negative bearing on his/her continued suitability for employment.”