South Africa is a racially diverse country and every day, people of different races encounter one another. Among other places, the workplace is often times an environment in which different races meet, as this is where the South African working population spends most of their time. Our Constitution is considered one of the best in the world, especially in respect of the fundamental rights it guarantees, however no right is absolute and some can be limited in terms of Section 36 of the Constitution.
Section 16 of the Constitution grants all citizens freedom of expression, but what happens when one abuses this right? Let us have a look as to whether an employee can be dismissed for posting a racially discriminative post on Facebook. In particular we will discuss some of the cases that have dealt with this issue.
Dyonashe v Siyaya Skills Institute (Pty) Ltd (2018) 3 BALR 280 (CCMA):
In this matter, the Commission for Conciliation, Mediation, and Arbitration (herein after the“CCMA”) had to assess whether Mr Dyonashe, the employee, was fairly dismissed by his employer, Siyaya Skills Institute. The employee was charged with two charges. The first charge being the use of abusive and racist language and / or grossly inappropriate conduct resulting from a racist and / or derogatory statement the employee made on Facebook, where he stated: “Kill the Boer, we need to kill these”. The second charge being that he brought the company’s name into disrepute, as a client complained about the Facebook comment to the employer. A hearing was conducted and the employee was found guilty of the first charge and dismissed. The employee then referred a claim for unfair dismissal to the CCMA.
The employee argued that his dismissal was substantively unfair, as he was not guilty of the offense for which he was dismissed. He further argued that if he was guilty, the sanction of dismissal was not suitable, as he was not aware of the fact that he may not post comments on Facebook. The employee also challenged the procedural fairness of his dismissal.
The Commissioner held that the dismissal was procedurally fair. The CCMA then assessed whether the Facebook post was racist and / or derogatory in order to see if the dismissal was substantively fair.
The Commissioner upheld the case of SA Equity Workers Association on behalf of Bester v Rustenburg Platinum Mine and Another (2017) 38 ILJ 1779 (LAC), where the court held that race descriptors are neutral and it is only by locating them in a ‘pejorative’ context that their use should be condemned as racist. The Commissioner held that the employee’s Facebook post was placed in a pejorative context.
Further, the case of Afri-Forum and another v Malema and another 2011 (12) BCLR 1289 (EqC) was considered, in this case the court held that the meaning of alleged racist or derogatory words is what the reasonable person would ascribe it to be. The Commissioner held that in this instance, the meaning of ‘kill the boer’ can largely and objectively be interpreted by a reasonable person to mean: kill white people. The Commissioner found that the employee’s Facebook post was racist, and that the applicant was guilty of the charge for which he was dismissed.
The Commissioner also considered whether it made any difference to the case that the employee was not at work when he posted the comments or whether it made any difference that the comment was not directed towards a fellow employee. In respect of this, the Commissioner considered the case of Dolo v Commission for Conciliation, Mediation & Arbitration & others (2011) 32 ILJ 905 (LC), wherein the Labour Court stated that in holding that the employee’s conduct outside of the workplace and outside of working hours, it must be considered as to whether the conduct has had a negative bearing on the employee’s continued suitability for employment.
The Commissioner concluded that the dismissal was fair, and suitable for the applicant’s conduct.
In Dagane v SSSBC and others (JR2219/14), an employee, who was a warrant officer for SAPS put himself in an unpleasant situation after posting racist remarks on Julius Malema’s Facebook page. He wrote, “[F***] this white racist [s***]! We must introduce Black apartheid. Whites have no ROOM in our heart and mind. Viva MALEMA.” “When the Black Messiah (NM) dies, we’ll teach whites some lesson. We’ll commit genocide on them. I hate whites.” (Sic)
These remarks were picked up by a reporter who published an article which found its way to the employee’s employer. The employee was dismissed and he referred the matter to the relevant bargaining council for unfair dismissal. The bargaining council found that the dismissal was fair. The employee then approached the Labour Court and once again the court had to deal with a case involving racist comments made by employees. The Labour Court held that “the use of racist language is despicable.”
The employer provided print-outs from Google that incorporated the employee’s remarks as part of their evidence. The employee argued that he did not make the comments. His defense was that someone created an account using his details or someone hacked into his account. The commissioner at the bargaining council found that on a balance of probabilities, the employee had made the comments of Facebook. The employee argued the employer could not rely on the print-outs as they were hearsay evidence and inadmissible. Although the commissioner agreed that the print outs amounted to hearsay evidence, she nevertheless used her discretion to admit them as evidence.
The commissioner considered that the employee was a police officer required to protect citizens irrespective of their race. She did not interfere with the employer’s decision to dismiss the employee and held the dismissal was fair. The Labour Court found that this was reasonable. It held that the employee “was dismissed for very serious misconduct. The Labour Court held that “there can be no doubt that dismissal was a fair sanction”.
The above-mentioned cases confirm that social media misconduct and comments of racism constitute serious misconduct and are fair grounds for dismissal.
Often employees have the misguided belief that their constitutional right to freedom of expression entitles them to say anything; however this is not the case as this right can be limited on the basis of impacting others dignity and such can lead to a dismissal.