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In this 2019 Edcon Ltd case, an employee was dismissed for her Facebook comment in response to a segment about the reshuffling of Cabinet on Carte Blanche.

After a member of the public explored her Facebook profile and found that she was employed at Edcon Ltd, they made a complaint to her employer and she was called to a disciplinary inquiry – charged with making an inappropriate racist comment. She was summarily dismissed.

The employee referred a claim for unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA). During the arbitration process, several factors were considered.

The first was that the employee posted the message while on leave and most readers would not associate the comment with her employer. Furthermore, she was charged with breaching Edcon Ltd’s social media policy, but this only applied to employees using the company’s resources during working hours and the employee used her personal computer outside of working hours. As such, 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 the company suffered any loss.  Thereafter, the policy was amended to include private conduct.

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 and not dismissed.

As such, the arbitrator found that the dismissal was substantively unfair and awarded 12 months’ compensation to the employee.

Edcon Ltd. asked to take the CCMA decision on review. The Labour Court first considered whether Edcon Ltd. was entitled to discipline the employee, notwithstanding that the comment had nothing to do with her work responsibilities. It was found that the CCMA was correct that the Company’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 the Company because she identified herself as an employee.

The Labour Court held that the comment had exposed the Company to reputational harm. It was read by customers and the public which attracted negative media as well as social media attention, which placed the Company’s reputation at risk. Numerous customers threatened to revoke their business. The arbitrator had placed emphasis on the fact that the Company did not prove the financial loss suffered but the Labour Court found that the commissioner had failed to appreciate that the employee was not charged with causing loss.

The Labour Court 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. Her post was found to be racist and not in accordance with Company values. It was also held that the right to free speech does not extend to statements calculated to cause offence and harm. Furthermore, she was a senior employee who was expected to have known better.

Regarding 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.

The case concluded with the decision that the commissioner failed to consider all the evidence and reached an unreasonable decision. As such, the award was set aside, and the dismissal was found to be substantively fair.

In conclusion:

The case of Edcon Ltd. demonstrates that employees can be held accountable for their social media posts, regardless of whether they are saying them as a member of their company or in their private capacity.  This can result in their dismissal.  Therefore, all employees should be very mindful of what they choose to post and the information that can be learned about them through their social media profiles.  Bear in mind that everything you say on the Internet can be held against you if it interferes with your employer’s reputation or causes them losses in any other way.

Think before you post!

Reference List:

  • Extracted from article in April 2020 edition of De Rebus (DR 31) by Monique Jefferson BA (Wits) LLB (Rhodes).
  • Edcon Ltd v Cantamessa and Others [2020] 2 BLLR 186 (LC)
  • http://www.saflii.org/za/cases/ZALCJHB/2019/273.html

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