Much has been said about the serious nature of social media misconduct and the impact it can have on the employee-employer relationship.
The recent case of Juda Phonyogo Dagane vs South African Police Services, 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, uploaded racist comments on the Facebook page of Julius Malema, the leader of the Economic Freedom Fighters (EFF).
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The hate speech and incitement to violence comments made by him included the following:
“F* this white racist sh*t! 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, the police 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.
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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.
Taryn York and Shahanaz Bismilla of Sandton-based law firm, Cowan Harper Attorneys said social media misconduct continues to be an area of risk and concern for employers.
They pointed out that it is noteworthy that police 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, they advised.
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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, especially as such misconduct can have serious consequences on the reputation of the employer, they said.
Often employees have the misguided belief 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 in that it may not impact on the dignity of others or cause harm, they warned. A proactive rather than a reactive approach from employers is likely to yield positive results in dealing with this issue.
Also, read:
Momberg is just a scapegoat – Reed Foundation
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