It’s safe to say that social media has infiltrated our personal lives and working environments to such an extent that one does not always realise the repercussions of posting and commenting freely on these platforms since it has formed part of our everyday activities.
Racism can be defined as prejudice, discrimination, or antagonism directed against someone of a different race based on the belief that one’s race is superior. The CCMA scrutinised this very definition and racial social media posts in the following two recent judgements.
In the first case of Shamuyarira / Commodity Inspection Group (Pty) Ltd [2019] 6 BALR 676 (CCMA), the employee made comments on a WhatsApp group stating that, amongst others, he was more intelligent than White and Indian managers and directors, thereby implying that he must be compensated accordingly. The Commissioner found the dismissal to be substantively fair and based his finding on Section 10 (1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, which prohibits communication of words that could reasonably be construed to demonstrate a clear intention to be hurtful, harmful or propagate hatred.
In the second case of African Meat Industry & Allied Trade Union on behalf of Makhoba and Clover SA (Pty) Ltd (2018) 39 ILJ 477 (CCMA), the employee failed in his bid to be reinstated to his job after he was dismissed for making racist comments on social media through a Facebook post of a well know news page, calling for all whites to be killed. In a recent ruling, the Durban Labour Court Acting Judge stated that it did not matter that the employee posted the comment outside of work hours or that he was unaware of the company’s social media policy. What mattered was that any South African should know that racial utterances are unacceptable, and employers need to remind their employees of this. She found the dismissal to be substantively and procedurally fair.
As such, one should not be perceived by “freedom of speech” or “privacy outside working hours” since the posting of racial content directly interest the employment relationship. In certain instances, employees may even find themselves in dire positions, particularly considering the historical and political sensitivities in South Africa. Our courts and dispute resolution forums have thus taken the view that employees will, without a doubt, be held accountable for social media misconduct, especially when it includes racial comments.
On 15 March 2018, our Cabinet approved the submission of the Prevention and Combating of Hate Crimes and Hate Speech Bill to Parliament. In terms of this Bill, hate speech is a criminal offence punishable by a prison sentence of up to three years for a first offence. Under the new laws, hate speech will be defined as “…a clear intention to be harmful or to incite harm, or promote or propagate hatred based on several grounds, including race.” The Bill also makes it an offence to distribute hate speech material in cyberspace – i.e., electronic or on digital platforms.
We hereby urge all business owners to be vigilant regarding social media posts and to ensure you have a comprehensive social media policy in place. It is advised that you appoint a trusted colleague to monitor and regulate the company’s social media posts and comments.
Should you find yourself having to charge an employee for social media misconduct on any social media platform that has a detrimental impact on the interests of the company, do ensure that you gather as much evidence as quickly as possible. Take screenshots of the content before it is deleted in order to hand over all evidence to the chairperson to pursue disciplinary action.
Contact your SEESA Labour Legal Advisor to assist your business with any employee dismissal queries you might have. Alternatively, SMS the word “SEESA” to 45776 for an expert legal advisor to contact you.
About the Author
Tanya started her career at SEESA in 2020 and is currently a Labour Legal Advisor at SEESA’s Office. She obtained her LLB in 2016, her LLM in 2020, and is an admitted Attorney.
References
- Business Tech, T. Broughton What the courts said after a South African employee was fired for posting racist comments on Facebook 11 October 2021
- The South African Labour Guide
- Employment Law
- Business Tech New hate speech laws planned for South Africa – including jail time for messages sent via WhatsApp 27 August 2021
- African Meat Industry & Allied Trade Union on behalf of Makhoba and Clover SA (Pty) Ltd (2018) 39 ILJ 477 (CCMA)