Labour Law in a Nutshell November 2019

HOLIDAY RANT: What can an employer do if an employee posts a racist rant while on annual leave?

This is what an Edcon employee did while she was on leave in December 2015. She was angry about President Zuma’s decision to replace Finance Minister Nhlanhla Nene with Minister Des van Rooyen. She took to Facebook to express herself in a post which read as follows –

“Watching Carte Blanch and listening to these f***ing stupid monkeys running our country and how everyone makes excuses for that stupid man we have to call a president… President my f***ing ass!! #zumamustfall. This makes me crazy ass mad.”

The employee’s Facebook profile said she was employed as a Fashion Buyer by Edcon. The post sparked a flurry of protests on twitter about the racist contents of the post. Their fury was aimed not only at the offending employee, but also Edcon as her employer.

An example of one of the 351 Tweets which mentioned the Facebook post included: 

“@EdgarsSA what are your thoughts on the degrading racist remarks made by one of your buyers?? we demand answers #MsTeresaCantamessa” and “Another one!! #Ms TeresaCantamessa #RacismMustFall”

The outrage quickly spread into the mainline media with the Sowetan publishing an article about the employee’s post under the banner – “Racist Monkey slur strikes again”. Twitter users demanded answers from Edcon and some threatened not to do business with Edcon.

The employee referred a dispute to the CCMA after Edcon dismissed her following a disciplinary enquiry. The Commissioner found that the dismissal was substantively unfair and ordered Edcon to pay the maximum compensation of 12 month’s salary to the employee. The reasons for the Commissioner’s decisions were that the employee was not at work but on leave at the time she posted the offending comment – and that her post made no mention of Edcon.

Edcon was not satisfied and took the award on review to the Labour Court[1]. The LC disagreed with the CCMA’s decision and found that the dismissal was fair. It said an employer can take disciplinary action for misconduct committed while an employee is on leave provided it establishes the necessary connection between the misconduct and its business.

The “necessary connection” in this case was the employee’s status on her Facebook profile as an Edcon employee. The LC noted that an employee must avoid attracting attention as a controversial employee in the eyes of the public where he or she can be associated with the employer.

The post was considered to be highly offensive – and it was associated with Edcon by virtue of the employee’s status as an employee of Edcon. This entitled Edcon to take disciplinary action to protect its good name and reputation from falling into disrepute for tolerating racism.

TIP: Employers should be ever vigilant about reminding their employees that unbecoming behaviour and conduct can reflect badly on their employer regardless whether they occur at work or outside the workplace in personal time. This is especially true of posting comments on social media in which there are no boundaries and the dividing line between work and personal time is paper thin.   

PATRICK DEALE
labour lawyer & mediator
Deale Attorneys
Tel: 083 375 8771
Email:  patrick@deale.co.za
Skype: patrick.deale
Web:    www.deale.co.za

[1] EDCON Limited v Cantamessa and Others (JR30/17) [2019] ZALCJHB 273 (11 October 2019).

Source: Worklaw Newsflash October 2019.