12 Nov 2019

Racial Conduct in the Workplace- and its consquences

Practice Area(s): Employment |

It is commonly known that our Constitution bestows the right of freedom of expression to all citizens, which includes freedom of the press and other media as well as the freedom to receive and impart information and ideas. The introduction of various social media platforms has made it extremely difficult to know how we can exercise these rights – even more so within the workplace. In the recent case of EDCON Limited v Cantamessa and Others, the Labour Court recently upheld the dismissal of a former senior Edcon employee who called former president Jacob Zuma a “monkey” in a Facebook rant. Edcon was represented by Shepstone and Wylie Employment Law department at the Labour Court.

The employee was employed as a Fashion Buyer and posted on her Facebook page in late 2015:
“Watching Carte Blanch and listening to these f*****g stupid monkeys running our country and how everyone makes excuses for that stupid man we have to call a president... President my f*****g ass!! #zumamustfall this makes me crazy ass mad.”

The employee was on leave at the time that she published her post and her Facebook profile stated that she was employed by Edcon. An aggrieved customer made a complaint and soon after, the media caught onto the post with Twitter users re-tweeting the post stating: “@EdgarsSA what are your thoughts on the degrading racist remarks made by one of your buyers?”.

The Sowetan Newspaper later published an article about the post resulting in the public demanding answers from Edcon and in some instances, threatening not to do business with the Company.

Due to her post, the employee was charged with misconduct for making an inappropriate racial comment on Facebook, as it had placed the Company's reputation at risk, and thus breached the employment trust relationship. At the disciplinary enquiry, the chairperson was required to decide whether Edcon was entitled to act against the employee given that she published her post whilst on annual leave. The chairperson found her guilty of the charge, the employee was dismissed, and the dispute was taken to the Commission for Conciliation, Mediation and Arbitration (“CCMA”).

The CCMA found that the dismissal was substantively unfair and awarded maximum compensation of 12 month's salary as the employee did not wish to be reinstated. The CCMA found that the Facebook post did not pertain to her work or to Edcon, that Edcon's Social Media and Code of Ethics Policy did not apply as the Policies only applied whilst employees are “at work” and not outside working hours, and that there was no persuasive or convincing evidence that the post impacted negatively, financially, or otherwise on Edcon.

The dispute was taken on review where the Labour Court found that the CCMA committed a reviewable irregularity by placing too much weight on Edcon's Social Media and Internet Policies in determining whether the dismissal was fair. The Court held that the employee was dismissed for making a racist comment and by doing so, placed Edcon's reputation at risk. The commissioner had failed to appreciate the devastating effects of apartheid and how the racist terms used by the employee in her post affected black South Africans inside and outside of the workplace.

In reaching his decision, the Honourable Judge Cele considered the following factors and legal principles:

  1. The derogatory terms used manifested a deep-rooted racism which has no place in a democratic society. Whether the word was uttered on or off duty was immaterial as it is the attitude that persists which, when on duty, affects the employment relationship;
  2. The clear connection between the misconduct and the employer’s business and whether the employee’s misconduct ‘had the effect of destroying or of seriously damaging the relationship of employer and employee between the parties; and
  3. The reality that South Africa is undoubtedly constituted largely by Black citizens. The post therefore exposed Edcon to a risk of reputational damage and the fact that no damage was proved by Edcon was not a valid defence.

The case illustrates that conduct that demonstrates racism or discrimination based on race is a material factor leading to the breakdown of the employment relationship. Any employee who uses racial epithets outside of the workplace runs the risk of being dismissed if the employer can prove a link between the conduct and the legitimate interest of its business. In order to transition into a more egalitarian society and workplace, employers will have to adopt a zero-tolerance approach to racism. It is vitally important that employees realise how closely connected they are to their employers and that this connection does not simply end after they leave work. Employees must ensure that their conduct must not lead to racial disharmony at the workplace and in the general public.

The Shepstone & Wylie team consisted of Verlie Oosthuizen, Siobhan Leyden, Curtis Nhliziyo, and Reabetswe Mampane.