New case deals with whether you can wear ‘political’ clothing to work in South Africa

Given the country’s past, it’s common for South Africans to display their affection towards a political party or trade union.

However, unless an employer is a political organisation or has an interest in a specific political party, employers generally have a duty to create and maintain a politically neutral work environment, says Cliffe Dekker Hofmeyr’s Fiona Leppan.

However, this does not mean that employees are prohibited from joining political parties or participating in political activities in their private time, as this goes to the heart of freedom of association, she said.

“The National Bargaining Council for the Chemical Industry (NBCCI) has confirmed this view in a recent arbitration award in the NUMSA obo Kwena Masha and PFG Building Glass case,” she said.

“The brief facts are that the employee, who was also a shop steward, was disciplined and dismissed for taking a photograph at the workplace of him wearing a t-shirt of a certain political party, and thereafter posting this photograph on Facebook thereby associating the employer with his political aspirations.

“Upon his dismissal, the employee referred an unfair dismissal dispute to the NBCCI and alleged, amongst other things, that the employer’s policy against wearing political insignia infringed his freedom of association.”

According to Leppan, the employer argued that it had a rule against the wearing of political clothing in the workplace because it was not affiliated to any political party and did not want to create the impression that it was tolerant of any particular political party.

It was also common cause that the employee was aware of the policy against wearing political clothing in the workplace as this was communicated to him directly and was also placed on notice boards and was available on the employer’s intranet.

“In deciding whether the dismissal was substantively fair, the Commissioner found that the policy prohibiting the taking of photographs in the workplace was reasonable as it was intended to protect the employer’s trade secrets in the form of unique designs and equipment,” Leppan explained.

“The Commissioner found that at no time prior to being charged did the employee remove the contentious pictures on Facebook despite him being aware of the workplace rule.”

She noted that the photograph was also in the public domain and accessible to the employer’s clients which, although indirectly, could have possible impact on the employer’s business in a form of decreased orders.

“The Commissioner found that because the employee had also posted another picture on Facebook of him attending a political rally for the same political party and displaying a banner that the ruling party should fall, it was clear that this constituted participation in political activity. Such conduct could objectively have a negative impact on the employer’s reputation,” she said.

Finding

The Commissioner acknowledged that there is still a level of political intolerance in South Africa and stated that if such is not properly controlled in the workplace, it could lead to unnecessary tension.

Further, the Commissioner found that given the position of influence the employee enjoyed as a shop steward, he should have known better and acted with caution. On this basis, the Commissioner found that the sanction of dismissal was appropriate, also taking into account the seriousness of the misconduct.

“The arbitration award confirms that while employees have the right to freedom of association, that right is not absolute and may be limited provided that it is for the greater good,” said Leppan.

“Wearing political clothing does not only have the potential to cause tension in the workplace but also impacts cohesion and constructive interaction which should take place between employees amongst themselves and the employer. An employer is therefore well within its rights to take reasonable steps to mitigate this.”

“Should an employer decide to introduce a rule against political insignia in the workplace, such rule must be applied consistently through all levels of management. This would alleviate the argument that management supports a particular political party or organisation.

“It will also assist to discourage claims of unfair treatment against the employer in future,” she said.


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