While Section 16 of the Constitution affords everyone the right to freedom of expression, this right is not absolute and can be limited through the balancing of conflicting rights and the potential harm caused in particular circumstances, say Sinokuhle Skondo and Neil Coetzer of Cowan-Harper-Madikizela Attorneys.<\/p>\n
The legal experts said that the right to freedom of expression does not operate in a vacuum and that making certain utterances will not allow employees to claim immunity from censure by their employers and the courts.<\/p>\n
“One of the reasons for this is that an employee owes a duty of good faith to their employer,” they said.<\/p>\n
“While this duty is wide-ranging and difficult to define with any precision, it includes a duty to act in the best interests of the employer at all times.”<\/p>\n
What the courts have said<\/strong><\/p>\n Skondo and Coetzer cited the recent CCMA case where former SABC chief executive Hlaudi Motsoeneng argued against his dismal from the national broadcaster.<\/p>\n Motsoeneng addressed a press conference during which he made various disparaging comments about the SABC, its board of directors, and individual board members.<\/p>\n “The commissioner found that disparaging comments about the employer may only attract judicial protection if they are made to advance the interests of justice, are made in good faith and are not misleading or reckless,” they said.<\/p>\n “In doing so, the commissioner implicitly accepted that employers are not immune from disparaging remarks made by their employees, provided certain requirements are met.”<\/p>\n The commissioner also found that the right to freedom of expression was not absolute and that the negative comments made by the employee did not enjoy legal protection because they impaired the dignity of others, the legal experts said.<\/p>\n In the same vein in the recent case of Ndzimande v Dibben, the Labour Court ruled that employees made disparaging and untruthful statements about their employer on a radio show.<\/p>\n The court found that while employees are entitled to express legitimate grievances and exercise their constitutional rights, freedom of expression is not an unfettered right, Skondo and Coetzer said.<\/p>\n “As a general principle, rights are balanced and weighed against each other and against the harm suffered.<\/p>\n “It appears that in many instances, the employer\u2019s right to a good reputation and good name may trump the employees right to freedom of expression, particularly in circumstances where the employee\u2019s utterances are misleading, disparaging, untruthful or harmful and not in the public interest.”<\/p>\n Social media<\/strong><\/p>\n Skondo and Coetzer noted that these types of derogatory comments also applies to social media posts.<\/p>\n “In addition to disparaging comments, an employee\u2019s conduct outside of the workplace can attract a dismissal if, by way of association, their conduct brings the employer into disrepute,” they said.<\/p>\n “As such, if the employee makes remarks that are derogatory, offensive and threatening on social media platforms, and the employer considers these remarks to be damaging to its good name and reputation by way of association, then the employer is generally entitled to dismiss the employee.”<\/p>\n The legal experts cited the case of Dagane v Safety & Security Sectoral Bargaining Council <\/em>where a police officer made vitriolic, racist comments on the Facebook page of the leader of the Economic Freedom Fighters, Julius Malema.<\/p>\n Although these comments were not directed at the employer, the South African Police Services (SAPS), was of the view that as a result of the employee\u2019s position and his association with the SAPS these comments were damaging to its reputation, they said.<\/p>\n “The Labour Court held that the dismissal was fair, finding that the police officer committed egregious misconduct in that he not only used disgraceful and racist language constituting hate speech, but he did so in his capacity as a police officer and did so on a quasi-public forum which was accessible to thousands of people on Facebook.”<\/p>\n
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