South African employees often include the disclaimer that their ‘views do not represent those of my employer’ on their social media pages. However, this may not be enough to get them out of trouble at work, says Siphamandla Dube, a senior associate at ENSAfrica.
Dube highlighted the recent Labour Court case of Edcon Limited v Cantamessa where an Edcon employee published a ‘racial monkey slur’.
“The brief facts were that during December 2015, the then President Jacob Zuma appointed Des van Rooyen as Finance Minister in the place of Nhlanhla Nene,” said Dube.
“Many South Africans were upset about president Zuma’s cabinet reshuffle.”
On 20 December 2015, while on annual leave, the employee posted the following message on her Facebook account:
“Watching Carte Blanch and listening to these f****** stupid monkeys running our country and how everyone makes excuses for that stupid man we have to call a president… President my f****** ass!! #zumamustfall This makes me crazy ass mad.”
Following this, Edcon received a complaint about the employee which referenced the Facebook post. The employee’s Facebook profile indicated that she worked at Edcon and the story was subsequently picked up by a national newspaper.
“Several Twitter users who reacted to the employee’s Facebook post demanded answers from Edcon and, in some instances, threatened not to do business with Edcon,” Dube said.
“As a consequence of the above, Edcon suspended the employee and subjected her to a disciplinary enquiry.”
The disciplinary hearing proceeded and, upon making a finding of guilt, the chairperson summarily dismissed the employee.
After first being heard by the CCMA – which found that the dismissal was unfair – the issue was taken to the Labour Court by Edcon.
The Labour Court held that the general rule is that an employer has ‘no jurisdiction or competency to discipline an employee for conduct that is not work-related and which occurs after working hours and away from the workplace’, Dube said.
However, relying on a previous Labour Appeal Court judgment, the court indicated that the fact that the misconduct complained of occurred away from the workplace and outside working hours does not necessarily preclude the employer from disciplining its employee, provided that there is a link between the employee’s conduct and the employer’s business, he said.
Dube said that the test for determining whether there was such a link is:
“[a]t the end of the enquiry what would have to be determined is if the employee’s misconduct had the effect of destroying or seriously damaging the relationship of employer and employee between the parties”.
“The court held that, in principle, Edcon could exercise discipline over the employee, provided it established the necessary connection between the misconduct and its business, said Dube.
“It noted that the comments made by the employee did not, in and of themselves, relate to the employer-employee relationship. The only source for the connection was that, in her Facebook page, she indicated that she worked for Edcon.
“The court found that there was a connection between the employee’s conduct and the relationship she had with her employer.”
The court further dismissed the employee’s defence that the use of the monkey slur was a reference to the government and not targeted at specific individuals.
It found that the usage of the monkey slur was in the circumstances a racial slur directed at Black persons in government, running the country.
“The court concluded that this was a highly offensive remark in respect of which Edcon was entitled to take disciplinary measures, lest its name be put into disrepute for tolerating racism,” said Dube.
The court concluded that the employee’s conduct exposed Edcon to a risk of reputational damage.
“The fact that no actual financial loss was proved by Edcon was not a valid defence. In any event, the charge sheet did not allege that damage was actually suffered,” said Dube.
On this basis, the court therefore reviewed and set aside the award and found that her dismissal was fair.
“This judgment highlights that the disciplinary reach of an employer extends to conduct outside of working hours and off the employer’s premises and once again confirms the unacceptable nature of racist conduct or comments, irrespective of whether the conduct or comment took place, or was made, in or outside of the workplace,” said Dube.
“It matters not that the unacceptable content which is posted on an employee’s social media is transmitted through a privately owned device.”