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In the Edcon Ltd case, an employee was dismissed for making a racist comment on Facebook. The employee had posted a message on Facebook referring to the government as “monkeys” shortly after watching Carte Blanche regarding the reshuffling of Cabinet. Her Facebook page identified her as an employee of Edcon Ltd (the Company). A complaint was made to her employer about the post and the employee was called to a disciplinary inquiry and charged with making an inappropriate racist comment. She was summarily dismissed.

The employee referred an unfair dismissal claim to the Commission for Conciliation, Mediation and Arbitration (CCMA) and the arbitrator found that the dismissal was substantively unfair and awarded 12 months’ compensation. The arbitrator considered the fact that the employee posted the message while on leave and was of the view that no reasonable reader would associate the comment with her employer. Furthermore, she was charged with breaching the employer’s social media policy and yet that policy only applied to employees accessing the Internet through the company’s resources and during working hours. The employee had used her personal computer and it was not during working hours. Subsequently, the policy was amended to include private conduct. 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. 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.

The Company then took the CCMA decision on review. The Labour Court (LC) first considered whether the Company 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 LC 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 take their business away. The arbitrator had placed emphasis on the fact that the Company did not prove the financial loss suffered but the LC found that the commissioner had failed to appreciate that the employee was not charged with causing loss.

The LC 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. As regards 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.

It was held that the commissioner failed to consider all the evidence before him and reached an unreasonable decision. The award was set aside, and the dismissal was found to be substantively fair.

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This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

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