‘Just a joke’ can still get you fired from your job in South Africa
A recent case before the Commission for Conciliation Mediation and Arbitration (CCMA) shows that employees have to be careful when making so-called “jokes” on social media channels.
In the case, analysed by Jacques van Wyk and Andre van Heerden from Werksmans Attorneys, the applicant was employed as an operator at the Ford Motor Company of South Africa.
In May 2023, the employee sent a message on a WhatsApp group with 47 employees, saying:
“Due to the Stage 6 Load Shedding, the Ford Struandale Engine Plant would, on 3 May 2023, be closed for the afternoon and night shift from 8 pm until 6 am on the following morning”.
In addition, the message stated that “the affected shifts would be placed on a lay-off on Wednesday, 3 May 2023 and that in the absence of any changes, the affected employees would be required to come to work on the following day, 4 May 2023“.
The company subsequently dismissed the employee for misconduct.
The applicant, a member of the National Union of Metalworkers of South Africa, took the matter to the CCMA, challenging the substantive fairness of his dismissal at the CCMA.
Ford argued that the misconduct was incredibly serious and tantamount to fraud and could have resulted in 47 employees not reporting for duty. This would have impacted Ford’s production, with it failing to meet its daily targets.
Although the applicant did not dispute sending the message to the group, he claimed that it was deleted within seconds and that he sent another message to the group that it was “just a joke”.
However, Ford said that the message was only deleted after management intervened.
The employee argued that Ford did not suffer any losses as a result of the “joke” and that his firing was too harsh.
CCMA’s analysis
The Commissioner referred to the Code of Good Practice: Dismissal of the Labour Relations Act 66 of 1995 (LRA), emphasising that the Code provides that “employers and employees should treat each other with mutual respect” and that “employers are entitled to satisfactory conduct and work performance from their employees“.
As only the substantive fairness of his dismissal was challenged, the Commissioner referred to item 7 of the Code, which requires any person who is thinking of whether a dismissal for misconduct is unfair to consider “whether or not the employee contravened rule or standard regulating conduct in, or of relevance to the workplace; and (a) if the rule or standard was contravened, whether or not… (iv) dismissal was the appropriate sanction for the contravention of the rule or standard”
Thus, when it comes to the appropriateness of the sanction for the misconduct, the Commission looked at the gravity of the misconduct and the importance of deterring other employees from engaging in such misconduct.
When considering the gravity of the misconduct, the Commissioner had to consider the context of the message.
As higher stages of load shedding in the first half of 2023 meant that many companies were unable to meet their production targets, the Commissioner said load shedding is incredibly serious and no laughing matter.
The Commissioner said that employees who are part of the group wouldn’t have questioned the message, possibly deterring them from coming to work. This would have resulted in them not meeting their daily targets.
The applicant was also dishonest, with the message seen as a deliberate and calculated effort. Although the message was deleted, it did not save him as it should have never been posted.
“The Commissioner, therefore, held that dismissal was an appropriate sanction and substantively fair given the severity of the misconduct,” the experts said.
Ultimately, “employees who post messages on their employer’s social media groups must consider the impact of same on the employer and other employees.”
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