BY Siphamandla Dube
Can employers discipline employees for conduct occurring outside of working hours?
An increase in global digitisation has resulted in the extensive use of social media. This has undoubtedly changed the way in which we communicate personally and professionally. In the inescapable, ever-changing and rapid advancement of social media, many employees express their views in the public domain for public consumption. As a result, employees often include the famous disclaimer “views expressed are my own, they do not represent those of my employer” on their social media pages.
But can employers discipline employees when they post unfavourable comments regarding their employer, or comments that may adversely impact on their employer, on their own social media accounts, with their own data and devices and, more especially, when this conduct occurs outside the workplace and outside working hours? Recently, in Edcon Limited v Cantamessa and Others, the Labour Court had the opportunity to consider these issues in the context of a “racial monkey slur” posted on Facebook.
The brief facts in this case were that during December 2015, the then President Jacob Zuma appointed Mr Des van Rooyen as Finance Minister, in the place of Mr Nhlanhla Nene. 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."
On 12 January 2016, Edcon received an email from a Ms Amanda Sibeko, in which she complained about the employee’s Facebook post. She wrote:
“I would like to bring to your attention the attached post by an Edcon employee on social media. In light of recent occurrences [sic] in our country I felt it my duty to act on Ms Cantamessa’s post. Her bio indicates that she works for Edcon and therefore associated her social media with the organisation… Please advise [sic] on what transpires from this email.”
On 22 January 2016, the Sowetan Newspaper published an article about the employee’s post entitled "Racist Monkey slur strikes again". 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. As a consequence of the above, Edcon suspended the employee and subjected her to a disciplinary enquiry. The employee was charged with misconduct described as:
"On the 20th of December 2015, you made an inappropriate racial comment on Facebook. Such action placed the Company's reputation at risk and has breached the employment trust relationship".
It was common cause throughout the dismissal dispute that the employee had posted the comment on her Facebook page, while she was on annual leave, using her own computer and data. The comment she made had nothing to do with her duties as an employee of Edcon. It was also common cause that her Facebook page indicated that she was employed by Edcon.
The disciplinary hearing proceeded and, upon making a finding of guilt, the chairperson summarily dismissed the employee. The employee referred an unfair dismissal dispute to the CCMA. On 28 December 2016, the commissioner issued his arbitration award in which he found the employee’s dismissal to have been substantively unfair. In support of his finding, the commissioner held, amongst other things, that the employee’s post did not pertain to her work or to Edcon, the employee was on annual leave and not at work when she posted on her Facebook account. The commissioner further held that Edcon had failed to show that it suffered any financial loss as a consequence of the employee’s Facebook post.
Edcon took the award on review to the Labour Court. 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. However, relying on the Labour Appeal Court judgment of Hoechst (Pty) Ltd v Chemical Workers Industrial Union and Another, 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. The test for determining whether there was such a link was described as follows in the Hoechst decision:
“[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. 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. This was stated as follows:
“ The only source for the connection lies in that her Facebook page indicated that she worked for Edcon. However, Edcon is a merchandiser of its various products in a competitive industry. Ms Cantamessa as a Specialist Buyer played a pivotal role in the acquisition of such products, including ladies trending styles and fashion for Edcon. The success of its business depends also largely on how it markets itself to the general public. Therefore, having a good name is an essential asset or quality of Edcon to the general public. In as much as Buyers of Edcon can and often remain anonymous to the general public, once their identities are exposed to the general public, it must only be in a positive and not negative environment or circumstance, otherwise such disclosure imposes a risk that the name of Edcon may be brought into disrepute. Therein lay the connection between the conduct of Ms Cantamessa with the relationship she had with her employer. She had to avoid being a controversial employee in the public eyes where she could be associated with Edcon.”
The court dismissed the employee’s defence that the use of the monkey slur was a reference to the government and not targeted at specific individuals. The court 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. 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. 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. It matters not that the unacceptable content which is posted on an employee’s social media is transmitted through a privately owned device.
Reviewed by Peter le Roux, an executive consultant in ENSafrica’s employment department
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