The Labour Court recently considered yet another case of racist remarks made by an employee outside of the workplace in Edcon Limited v Cantamessa and Others (JR30/17) [2019] ZALCJHB 273 (11 October 2019). The court found that, as a general rule, an employer is not permitted to discipline an employee for conduct that is not work-related, occurs outside of working hours and outside of the workplace itself. However, where a sufficient link can be established between the employee's conduct and the employment relationship, the employer may be permitted to take disciplinary action.

By way of background, Ms Cantamessa (employee) was employed by Edcon Limited (employer) as a Specialist Buyer for a ladies fashion brand. During the latter part of 2015, the #ZumaMustFall campaign arose and gained traction especially after a cabinet reshuffle. This caught the attention of the public media and a related story was aired on Carte Blanche on 20 December 2015. Fol​lowing this story, the employee published this Facebook post -

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

​The employee posted this whilst on annual leave. At the time of the Facebook post, her profile stated that she was employed by the employer. As much as her Facebook post was "private" (i.e. only visible to her friends on Facebook), it eventually was shared in the public domain.

The Facebook post caught the attention of social media (especially on Twitter, where some 351 Tweets were made about the employee's Facebook post). A newspaper article was also published in the Sowetan about the Facebook post. A customer contacted the employer and asked questions regarding whether the employer would be taking disciplinary action against the employee for her conduct.

The employer charged the employee with misconduct and she was eventually dismissed. The employee challenged her dismissal at the CCMA which found her dismissal to be substantively unfair on the basis that the Facebook post was not published while she was at work and using the employer's resources and that the post did not pertain to the employee's work for the employer. The employee was awarded 12 months of compensation for the unfair dismissal.

On review, the Labour Court set aside the CCMA arbitration award. The court found that if an employee commits misconduct outside of the workplace, this does not necessarily preclude the employer from disciplining that employee. Depending on the circumstances of the case, the employer could have a right to discipline an employee for misconduct that takes place outside of the workplace.

In this matter, the court was particular in pointing out the following circumstances -

These circumstances, seen together, meant that the employer was justified in disciplining the employee for the Facebook post.

In the judgment, the long and ugly history of the "monkey slur" in South Africa was retraced. The employee's Facebook post should be viewed in this context by the CCMA. As much as every citizen has the right to freedom of expression, this does not extend to advocacy of hatred based on race (or any other recognised ground) and that constitutes incitement to cause harm. Facebook posts, like the employee's one, have no place in South African society. Employers are not expected to turn a blind eye to such conduct by employees, particularly where the conduct could have an impact on the employment relationship and/or business of the employer. The employee's dismissal was held to be substantively fair.​

Written by Johan Olivier, Jessica Braum, Shane Johnson, Webber Wentzel