By Shahnaaz Bismilla, Senior Associate and Taryn York, Candidate Attorney, Cowan-Harper Attorneys
Much has been said about the serious nature of social media misconduct and the impact it can have on the employment relationship. The recent case of Juda Phonyogo Dagane v South African Police Services (2219/14)  ZALCJHB (16 March 2018), once again confirms that social media misconduct and comments of racism constitute serious misconduct and are fair grounds for dismissal.
In this case, the Labour Court dismissed a review application brought by an employee who wished to challenge an arbitration award which upheld his dismissal for racist comments made by him on Facebook. The former employee, a member of the South African Police Services (“SAPS”), uploaded racist comments on the Facebook page of Mr Julius Malema, the leader of the Economic Freedom Fighters. The racist comments made by him included the following:-
“Fuck this white racist shit! 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 a genocide on them. I hate whites.”
Following an investigation, SAPS instituted disciplinary charges against the employee for various acts of misconduct. An internal disciplinary enquiry was conducted and the employee was found guilty of misconduct and dismissed. The employee referred an unfair dismissal dispute to the Safety and Security Sectoral Bargaining Council where his dismissal was found to be fair. The employee subsequently filed a review application in the Labour Court.
The Labour Court confirmed that the use of racist language is despicable. The conduct, in this case, was exacerbated as the employee was a police officer and the comments were made on a quasi-public forum which is accessible to potentially thousands of Facebook users. The public nature of the comments together with the fact that they were aimed at a specific racial group were also considered, as was the serious nature of the misconduct. The review application was dismissed with costs.
Social media misconduct continues to be an area of risk and concern for employers. It is noteworthy that SAPS did not have a social media policy and the Commissioner, in making her ruling, was guided by principles of “common sense” in evaluating the misconduct. Not all social media misconduct is this flagrant and employers should, as a minimum requirement, have a social media policy. Having regard to the nature of social media engagement and in particular its public character, it is necessary that employers engage and train employees on social media misconduct particularly as such misconduct can have serious consequences on the reputation of the employer.
Often employees have the misguided understanding that their constitutional right to freedom of expression entitles them to say anything. Employees should be educated about the limitations on the right to freedom of expression to the extent that it may not impact on the dignity of others or cause harm. A proactive rather than a reactive approach from employers is likely to yield positive results in dealing with this issue.
On 15 March 2018, Cabinet approved the submission of the Prevention and Combating of Hate Crimes and Hate Speech Bill to Parliament. This Bill, which is one step closer to becoming law, aims to make hate speech a criminal offence punishable by a prison sentence of up to 3 years for a first offence. Under the new laws, hate speech will be defined as a clear intention to be harmful or to incite harm, or promote or propagate hatred on the basis of several grounds, including race.
This law will have far reaching consequences for society as a whole but will also impact on the workplace. Employers are encouraged to engage with their employees on the purpose and impact of the Bill and on the possible criminal implications that arise from hate speech. Employers should also ensure that their policies are updated to make provision for the Hate Speech Bill.
A copy of the judgment can be found at: http://www.saflii.org/za/cases/ZALCJHB/2018/114.html