It is reported that in a recent arbitral award an employee, who challenged her dismissal for posting comments about her employer on Facebook, was reinstated. She commented that she had been ‘retrenched’ without prior notice by a senior employee after 20 years of service. The employer contended that apart from bringing the name of the company into disrepute the post was factually incorrect; the named employee was not involved at all; the statement was defamatory and the post had disrupted the workplace.
The arbiter believed the central issue related to whether her ‘conduct’ justified dismissal. It was decided that the post was simply an expression of hurt, the inaccuracy was of little relevance and there was no evidence of damage to the reputation of the employer. In addition it was unfair that during a traumatic time the employee should be prevented from discussing it and gaining support.
The central issue and should the employee have been reinstated?
Everyone engaged in an employment relationship must, subject to certain exceptions, behave in a manner that does not seriously damage or destroy trust and confidence. The Labour Relations Act (LRA) gives effect to the constitutional right to fair labour practices and provides that all employees covered by the LRA have a ‘right not to be unfairly dismissed’. In addition the Basic Conditions of Employment Act (BCEA) and our common law protect employees against unlawful dismissal. In other words senior managers may only dismiss employees lawfully and fairly.
The Constitution also protects the right to freedom of speech but also limits the right in order to achieve a balance between competing interests. So factors such as human dignity, equality and freedom must be considered. But what about employees and their relationship with their employers, managers and other employees? How far can they go in expressing their thoughts and ideas on any form of social media?
To be lawful the dismissal must be on reasonable notice, except where the contract is terminated summarily (without notice) because of the employee’s gross misconduct or material breach of the contract, and this will have to be proved by the employer. Fairness requires a fair procedure and a sufficient reason, in the sense of being valid and fair. Validity requires a relationship with the employee’s conduct/capability, but can also be based on ‘operational requirements’, which may not have anything to do with the employee.
Recently the Labour Appeal Court accepted that there is an overlap and that employers may rely on ‘operational requirements’ as a sufficient reason, even if the reason also relates to conduct or capability. The explanation is simple: the statutory procedure in s189 of the LRA favours the employee and the employee must receive notice and severance pay. In other words it is really only gross misconduct that deprives an employee of notice and severance benefits. So actual employee fault is not required for a lawful and fair dismissal. See Operational requirements: choice when misconduct related.
It is suggested that the validity of the reason must be ‘correct’. The same goes for proof of the ‘dismissal’ itself and relates to the issue of jurisdiction. In the absence of a valid reason it is pointless considering the fairness of the reason. Validity should involve balancing the constitutional rights of the parties. Only after the validity of the reason has been established does the reasonableness of the discretionary decision on fairness arise. See also an earlier post Dismissal: invalid reason cannot be fair. So leaving aside any issues relating to a fair procedure, management must prove on clear and convincing evidence that there was a ‘sufficient’ reason to dismiss. That requires proof of a ‘valid’ reason related to conduct, but the reason could also be based on ‘operational requirements’.
Given this difficult issue managers could be forgiven for relying on operational requirements and providing reasonable notice and severance pay in the best interests of all concerned. ‘Operational requirements’ includes economic, technological, structural and similar needs of the enterprise. But it is the process of joint consensus-seeking that is vital as it imposes obligations on both parties to find a solution and is far less confrontational that a disciplinary enquiry. In such circumstances senior managers must act in good faith and in the best interests of the enterprise ton ensure that the reason for dismissal is also valid and fair.
Unless it is decided to go the operational requirements route, once a reason is valid it must also be ‘fair’ and this requires proof by the employer that the trust relationship has been destroyed or seriously damaged by the employee’s ‘invalid’ conduct. In other words senior management must then prove that her conduct has resulted in an intolerable future working relationship. This is where the reasonableness of the arbiter’s decision on that issue becomes important and there are no right or wrong answers and each case will depend on its own facts and the approach of the arbiter.
The award referred to above was discussed in a recent article by Verlie Oosthuizen, Partner, Social Media Specialist in the Employment Law, Shepstone & Wylie Attorneys How far is too far for employees on social media? first published by the South African Labour Guide.