With South African businesses and employees growing increasingly reliant on WhatsApp as a means of communication, it has become increasingly common for labour disputes to arise around the messaging platform.
In terms of our labour law, any dismissal of an employee must be fair and just in terms of the Labour Relations Act. So, if an employee is to be dismissed for a WhatsApp message, this dismissal must meet the requirements of the Act, says legal firm Wright Rose Innes.
The firm pointed to the recent CCMA case of Masondo/AG Electrical (Pty) Ltd  4 BALR 400 (CCMA) where an employee was dismissed after he had sent a WhatsApp message threatening to kill his employer as well as an official of the bargaining council, shortly after the employer had placed its employees on short working time during the Covid-19 pandemic.
“Two contradictory views were placed before the Commissioner. The employer perceived the WhatsApp message as an intentional threat of physical violence, whereas, the employee indicated that he was merely trying to help his fellow co-workers who faced a similar challenge as he did.
“The employer’s version was not disputed by the employee and nor did he have any remorse or provide sound reasons for the message which he had sent.”
The result was that the CCMA held that the employee’s conduct was seen to have broken down the employer-employee relationship and his dismissal was thus confirmed to be substantively and procedurally fair, the firm said.
“In this way, the CCMA confirmed that a WhatsApp message can present grounds for dismissal, but as always, the facts of each case will need to be considered to determine whether there are grounds for dismissal or not.”
In August 2020, Discovery Health dismissed 10 employees for contravening the company’s social media policy and acting maliciously against the company, based on the messages in a WhatsApp group.
The employees started the group to support each other after contracting Covid-19 in April.
The employees complained to the Commission for Conciliation, Mediation, and Arbitration (CCMA) about their dismissal, arguing that they were unfairly dismissed and demanding 12 months’ salary from the company as compensation. They accused the company of unhealthy labour practices and invading their privacy.
Discovery Health chief executive Ryan Noach told the Sunday Times that a whistleblower who was a member of the WhatsApp group reported the women and made available the contents of their discussions.
These discussions “revealed clear and explicit details of these employees … initiating, planning and coordinating efforts to maliciously shut down Discovery,” he said.
In its letter to one of the affected workers, Discovery Health said the employee had “shared information and messages that were clearly prejudicial to and derogatory of the company” and accused them of making false and damaging statements about the company to an external party and attempting to organise a shutdown of Discovery offices in Port Elizabeth and Cape Town.
“Our expectations are that staff raise concerns internally, affording us the opportunity to clarify or resolve any items that may give cause to whatever concerns they may have,” Noach said.
“The evidence that we have in our possession illustrates that this group failed to take up opportunities to raise specific concerns internally and instead chose to act maliciously and unfairly in an attempt to achieve their nefarious end of an office closure by bringing the company into disrepute.”