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Off-duty Misconduct, Freedom of Expression and the Parity Principle -  October 2019  -

1 OFF-DUTY MISCONDUCT, FREEDOM OF EXPRESSION AND THE PARITY PRINCIPLE The Labour Court had the opportunity recently to address these and other issues within the context of a racial slur posted on Facebook, and to provide further guidance to employers in respect of conducting internal disciplinary enquiries. Background The facts in EDCON Limited v Cantamessa and Others (JR30/17) [2019] ZALCJHB 273 (11 October 2019) were that the employee, while on annual leave during December 2015, published the following post onto her Facebook account: "Watching Carte Blanch and listening to these fucking stupid monkeys running our country and how everyone makes excuses for that stupid man we have to call a president... President my fucking ass!! #zumamustfall This makes me crazy ass mad." (sic) Edcon received a letter of complaint from a member of the public, who said that the employee indicated on her profile that she worked for Edcon; Twitter users started to mention the post; and an article was published in the Sowetan Newspaper. Edcon suspended the employee and held a disciplinary enquiry, which resulted in the summary dismissal of the employee, on the grounds that she was a senior employee who had breached Edcon values and that her conduct posed a risk of reputational damage to Edcon as her employer. She was not charged with breach of specific policies or rules, or in terms of a specific offence from the employer’s disciplinary code. She 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." At the CCMA, her dismissal was found to be substantively unfair and 12 months’ compensation was awarded. The commissioner’s reasons included that the employee had been on leave (not ‘at work’) at the time of making the post, using her own equipment and data – the employer’s social media policies therefore did not apply to her. Also, relying on English case law, that the reasonable reader would not have associated her with Edcon; and that there was no proof of actual damages to Edcon. The commissioners also found that Edcon had been inconsistent in that those employees who had ‘liked’ her post, had been given final written warnings only. Labour Court Edcon took the matter on review. The Labour Court confirmed that it was common cause that the employee had made an entry on her Facebook page during her leave, using her own computer and her own data; that the comment made had nothing to do with her duties as an employee; and that her Facebook page indicated that she was employed by Edcon. Principles addressed by the court: 1. Where misconduct does not fall within the express terms of a disciplinary code, such misconduct may still be of such a nature that the employer may nonetheless, be entitled to discipline its employee.

2 2. The fact that the misconduct complained of occurred away from the workplace, would not necessarily preclude the employer from disciplining its employee in respect thereof. The Court referred to case law in this regard: • Hoechst (Pty) Ltd v Chemical Workers Industrial Union and Another (1993) 14 ILJ 1449 (LAC): “In our view the competence of an employer to discipline an employee for misconduct not covered in a disciplinary code depends on a multi-faceted factual enquiry. This enquiry would include but would not be limited to the nature of the misconduct, the nature of the work performed by the employee, the employer’s size, the nature and size of the employer’s work force, the position which the employer occupies in the market place and its profile therein, the nature of the work or services performed by the employer, the relationship between the employee and the victim, the impact of the misconduct on the work force as a whole, as well as on the relationship between the employer and the employee and the capacity of the employee to perform his job. At the end of the enquiry what would have to be determined is if the employee’s misconduct ‘had the effect of destroying or of seriously damaging the relationship of employer and employee between the parties’ (See Anglo American Farms T/a Boschendal Restaurant v Konjwayo (1992) 13 ILJ573 (LAC) 589 (G –H.)” • With reference to Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others [2002] 6 BLLR 493 (LAC), where the employee alleged that he had not specifically been told that he could not use racist epithets, the court held that it made no difference that the misconduct was not set out in a policy. The Code of Good Practice on Dismissal provides that employees may be disciplined if they break rules regulating conduct in or of relevance to the workplace. Misconduct can vary from dishonesty, assault, sexual harassment, fraud etc. Thus, the main principle is to determine the connection between the misconduct and the employer’s business. Thereafter, the employer has to prove to which extent it has affected the employment trust relationship. In principle therefore, Edcon could exercise discipline over the employee provided it established the necessary connection between the misconduct, if any, and its business. In this case, it was held that the employer’s business depended largely on how it markets itself to the general public and that having a good name is an essential asset or quality of Edcon to the general public and the employee had to avoid being a controversial employee in the public eyes where she could be associated with Edcon. 3. South Africa’s past cannot be ignored – derogatory expressions used in the past by some White citizens towards Black citizens had included the monkey slur. The usage thereof should therefore never be seen in isolation as though such usage had no history and it manifested a deep-rooted racism which has no place in a democratic society. 4. The employee’s defence that she was referring to ‘government’, not Blacks per se was also rejected, as the government of the day was largely constituted by Black citizens and it was in the circumstances a racial slur directed at Black persons in government, running the country. 5. Her argument that it was a comment on a private Facebook page and limited to circulation by fewer people, made no difference as it did leak out, albeit to a limited extent - and within that range Edcon was associated with her. It exposed Edcon to a risk of reputational damage. The fact that no actual damage was proved by Edcon was not a valid defence. 6. The court addressed the argument that she was entitled to freedom of expression in terms of the Constitution, and pointed out that this right does not however extend to advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm. While the employee could have criticised the government of the day where she felt it erred in its administrative manoeuvring, she however did not have the right to resort to racial slurs to vent her anger. Her conduct amounted to advocating hatred based on race which constitutes incitement to racial disharmony at the workplace and in the general public. The Labour Court therefore held that it had been 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.

3 This included the immediate suspension of the employee and subjecting her to an internal disciplinary hearing. As per Saaiman and Another v De Beers Consolidated Mines (Finsch Mine) (1995) ILJ 1551 (IC) the employer had the right to take such action where there was prima facie evidence that the employee’s action had, at the least, a potential to impact on the employer/employee relationship. As regards the sanction and the decision to dismiss the employee, the court considered the following in determining that dismissal was an appropriate sanction: • The employee was a senior employee who had even previously been a manager and her conduct had the potential of seriously harming Edcon’s business. • Her 20 years’ service and clean record were overweighed by the aggravating factors. • As regards the claim of inconsistency, the court held that it was acceptable to treat co-perpetrators differently depending on the extent of their participation to the misconduct. The applicability of the parity principle is not to the exclusion of prevailing different circumstances of the offending employees. Some important takeaways from this case • Where misconduct does not fall within the express terms of a disciplinary code, or is not explicitly set out in a policy, the employer may nevertheless be entitled to discipline its employees. The Code of Good Practice on Dismissal provides that employees may be disciplined if they break rules regulating conduct in or of relevance to the workplace. Misconduct can vary from dishonesty, assault, sexual harassment, fraud, and many more. (As I mentioned before, the focus of a disciplinary ‘charge’ is always misconduct, not an arbitrary label or categorisation precisely as formulated (or not) in a policy or code.) • The fact that the misconduct occurred away from the workplace would not necessarily preclude the employer from disciplining its employee. The main principle is to determine the connection between the misconduct and the employer’s business. The competence of an employer to discipline an employee for misconduct not covered in a disciplinary code depends on a multi-faceted factual enquiry. At the end of the enquiry what would have to be determined is if the employee’s misconduct ‘had the effect of destroying or of seriously damaging the relationship of employer and employee between the parties’. • Freedom of expression is not an absolute right – it has to be balanced with other Constitutional rights. • Actual damage to the employer does not have to be proven – potential risk is enough. One cannot count on privacy of a social media profile – things can leak out anyway. • Sanction: 20 years’ service and a clean disciplinary record were outweighed by the aggravating factors, including the seriousness of the infraction, the seniority of the employee and the potential risk to the employer. • The parity principle is not absolute and consistency in sanction can be influenced by various factors, such as the individual extent of participation in the misconduct. © Judith Griessel ________________________________________________________________________________ www.griesselconsulting.co.za October 2019