Jacques van Wyk | Director | Werksmans Attorneys | mail me|
Is a dismissal of an employee who posted alleged racist comments on Facebook substantively fair?
The dismissal of an employee who posted alleged racist comments on Facebook will be substantively fair only if a reasonable person ascribes the comment as racist and the comment has a negative bearing on the employee’s continued employment relationship.
Court’s decision
In the case of Dyonashe v Siyaya Skills Institute (Pty) Ltd (2018) 3 BALR 280 (CCMA), the Commission for Conciliation, Mediation and Arbitration (CCMA) had to assess whether Mr Dyonashe, the employee, was fairly dismissed by his employer, Siyaya Skills Institute.
The employee was charged with two charges.
The first charge: concerned the use of abusive and racist language and / or grossly inappropriate conduct resulting from a racist and / or derogatory statement the employee made on Facebook, where he stated: “Kill the Boer, we need to kill these”.
The second charge: concerned the employee bringing the company name into disrepute, as a client complained about the Facebook comment to the employer. At the hearing, the employee was found guilty of the first charge and dismissed for misconduct. The employee referred a claim for unfair dismissal to arbitration at the CCMA.
The employee argued that his dismissal was substantively unfair, as he was not guilty of the offence for which he was dismissed. He argued further that if he was guilty, the sanction of dismissal was inappropriate, as he was not aware of the fact that he may not post comments on Facebook. The employee also challenged the procedural fairness of his dismissal.
The Commissioner held that the dismissal was procedurally fair. The Commissioner then assessed whether the employee’s dismissal was substantively fair by assessing whether the Facebook post was racist and / or derogatory.
The Commissioner acknowledged the case of SA Equity Workers Association on behalf of Bester v Rustenburg Platinum Mine and Another (2017) 38 ILJ 1779 (LAC), where the court held that race descriptors are neutral and it is only by locating them in a ‘pejorative’ context that their use should be condemned as racist. The Commissioner held that the employee’s Facebook post was placed in a pejorative context.
The Commissioner then considered the case of Afri-Forum and another v Malema and another 2011 (12) BCLR 1289 (EqC), where the court held that the meaning of alleged racist or derogatory words is what the reasonable person would ascribe it to be. The Commissioner held that in this instance, the meaning of ‘kill the boer’ can largely and objectively be interpreted by a reasonable person to mean: kill white people.
The Commissioner accordingly found that the employee’s Facebook post was racist, and that the applicant was guilty of the charge for which he was dismissed.
The Commissioner also considered whether it made any difference to the case that the employee was not at work when he posted the comments or whether it made any difference that the comment was not directed towards a fellow employee. The Commissioner gave effect to the court’s decision in Dolo v Commission for Conciliation, Mediation & Arbitration & others (2011) 32 ILJ 905 (LC), holding that the employee’s conduct outside of the workplace and outside of working hours had a negative bearing on his continued suitability for employment.
The Commissioner concluded that the dismissal was fair, and an appropriate sanction.
Importance of this case
When determining whether to take disciplinary action against an employee where the employee allegedly makes racist / or derogatory statements outside of work, the first question is whether the statement has a pejorative context that a reasonable person would ascribe as being racist and / or derogatory.
The second question is whether the employee’s conduct has a negative bearing on his/her continued suitability for employment.
Thank you very much for your article, well written. Perhaps there should be some other type of enforcement actions when these type of racist comments are made. For instance, just today I was doing a search of the Internet about a Greek emperor called Komnenus and among the first Google entries I found a comment by a person called Gerasimos Komnenus on the “Chicago Reader” who goes on a roll about how “black people have ruined South Africa”. I will not repeat the rest of the comment but I believe that these type of racist statements should also be punished, perhaps those that own the web sites should be made to come up with a statement of apology and minimally those that make them should have their Internet access restricted or canceled.
The Commissioners are getting money from the companies for not awarding the employees cases. We have so many cases that have been Bought by Companies.
A person must be very careful, there is a guy called François Du to it that guy ask us to go outside when we wanted to leave the tape Recorder he did not want us to do so later on he postponed the case he said he wants more evidence from the company. I still have that on tape record.
The Commissioner ask Mr Dyonashe to go outside as he wants to talk to Siyaya representative, then it was declared that the documents does not Match so they need to compile new evidence that will match this!
Mr Dyonashe Futher explained that the words uttered there were not meant to be racist it was out of Proportion, the Racist remark was the video of Mrs Sono who was bitten by 4 white males at KFC Montana.
Mr Dyonashe asked in that Statement what if this woman is Pregnant? Why are they all beating one person. He then said “we do not need these type of people in our society, Kill the Boer kill these Hooligans that are beating woman’s in woman’s month ” then he was dismissed for that, the commissioner saw the video and he did read the fool comment but he decided to choose few words that will suit this case, the Commissioner was Bias, why would he advise the company Siyaya when they made a mistake? Commissioner francior said “black people think they own this Country” when we ask him what he is saying he refuse to repeat it, another Commissioner told him that he is taking this out of proportion as the statement was on the video of the hooligans that were beating the woman.