In Edcon Ltd v Cantamessa and Others [2020] 2 BLLR 186 (LC), an employee was dismissed for making a racist comment on Facebook. In this case, the employee had posted a message on Facebook referring to the government as monkeys shortly after watching an episode of Carte Blanche regarding the reshuffling of Cabinet. Her Facebook page identified her as an employee of Edcon. Initially the post went largely undetected, but a few weeks later in the aftermath of Penny Sparrow posting a racist tweet, Twitter users started to mention her post and a newspaper referred to the post in an article titled ‘Racist monkey slur strikes again’. A complaint was then made to her employer about the post and the employee was called to a disciplinary inquiry and charged with making an inappropriate racist comment. She was summarily dismissed.
The employee referred an unfair dismissal claim to the Commission for Conciliation, Mediation and Arbitration (CCMA) and the arbitrator found that the dismissal was substantively unfair and awarded 12 months’ compensation. The arbitrator considered the fact that the employee posted the message while on leave and was of the view that no reasonable reader would associate the comment with her employer simply because she mentioned who her employer was on her Facebook profile. Furthermore, she was charged with breaching the employer’s social media policy and yet that policy only applied to employees accessing the Internet through the company’s resources and during working hours. The employee had used her personal computer and it was not during working hours. Subsequently the policy was amended to include private conduct. The CCMA found that the employee did not breach the employer’s social media policy and did not bring the employer’s name into disrepute as there was no proof that Edcon suffered any loss. Furthermore, it was found that the employer had acted inconsistently as the employees who had liked the post were only issued with a final written warning.
Edcon then took the decision on review. The Labour Court (LC) per Cele J first considered whether Edcon was entitled to discipline the employee notwithstanding that the comment had nothing to do with her work duties. It was found that the CCMA was correct that Edcon’s policies did not apply to her conduct outside of working hours and outside of the workplace. However, an employer may still discipline employees for conduct outside of the workplace if there is a connection between the employee’s conduct and the employer’s business. It was held that in this case the employee’s comment could be linked to Edcon because she identified herself as an Edcon employee.
The employee’s defence was that she had been referring to the government alone and Edcon had not suffered any damage. The LC held that the comment had exposed Edcon to reputational harm. In this regard, it was read by customers and the public at large and attracted negative media attention, as well as negative social media attention, which placed Edcon’s reputation at risk. There were also a number of customers who threatened to take their business away. The arbitrator had placed emphasis on the fact that Edcon did not prove the financial loss suffered but the LC found that the commissioner had failed to appreciate that the employee was not charged with causing loss.
The LC also found that the CCMA had not properly appreciated the use of the word ‘monkey’ in the context of South Africa where such a word is rooted in racism. The LC emphasised that the use of the word had to be considered in light of the context and history of the country in which it was used. The employee had conceded that her comment could have caused offence. Her post was found to be racist and not in accordance with Edcon’s values. It was also held that the right to free speech does not extend to statements calculated to cause offence and harm and her frustration at government did not give her the right to express racist sentiments. Furthermore, she was a senior employee who was expected to have known better. As regards the argument about inconsistent discipline, it was held that co-perpetrators can be treated differently depending on the extent of their participation in the misconduct.
It was held that the commissioner failed to consider all the evidence before him and reached an unreasonable decision. The award was set aside, and the dismissal was found to be substantively fair.
Unfair dismissal for sexual harassment
In Adcock Ingram Healthcare (Pty) Ltd v General Industries Workers Union of South Africa obo Khumalo and Others [2020] 2 BLLR 162 (LC), a manager was dismissed for sexual harassment. In this case, the employer received complaints from a service provider that some if its employees were being sexually harassed. An investigation was conducted, and three employees were suspended. The employee was called to a disciplinary inquiry and dismissed. The complainant said that she and the employee had always been friendly towards each other and would greet each other with a hug. She said that the hugs eventually began to feel too intimate and she asked him to stop hugging her because she did not feel comfortable. She also said that she had pushed him away and confirmed that hugs were unwelcome.
The employee referred an unfair dismissal dispute. At the arbitration the employer called only one complainant as a witness and the employee denied that he did anything other than occasionally hug the complainant. Under cross-examination the complainant said that the employee had made her feel disrespected and she had asked him to stop hugging her because she had a boyfriend. She also said that he had requested to have sexual intercourse with her, at which point she had pushed him away. She said that he also smacked her on the buttocks and told her that he ‘wanted her’.
The employee denied that he ever touched the complainant inappropriately. He said that when she asked him to stop hugging her because she had a boyfriend he acceded to that request. The arbitrator applied the cautionary rule because there was only one witness in the case. The arbitrator preferred the employee’s version that the complainant was a willing participant in a ‘hugging affair’, which ceased when the complainant asked him to stop because she had a boyfriend. It was held that the employer did not discharge the onus to prove that the sexual harassment occurred. Reinstatement was ordered.
The employer took the decision on review on the basis that the commissioner had misdirected himself in applying the cautionary rule, demonstrated gender bias and had reached an unreasonable decision. The Labour Court (LC) found that the arbitrator did not base the decision solely on the application of the cautionary rule. It was held that the arbitrator assessed the evidence of the complainant and the employee and preferred the employee’s version. The LC took the view that it would not be fair to interfere with the arbitrator’s reasoning for preferring one version over another when there were conflicting versions unless the version is implausible as the arbitrator has the advantage of being present at the proceedings and observing the conduct of the witnesses. The employer also took issue with the fact that the arbitrator adopted an inquisitorial approach, but the LC found that this did not deny a fair trial. There was also no evidence of gender bias and the application for review was accordingly dismissed.
Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.
This article was first published in De Rebus in 2020 (April) DR 31.
