The Commission for Conciliation, Mediation and Arbitration (CCMA) recently handled a case wherein an employee was dismissed from his job because of a tweet sent days after President Cyril Ramaphosa declared a national state of disaster at the end of March 2020 to halt the spread of COVID-19.

The crux of the matter, according to Sean Jamison — a senior associate Cliffe Dekker Hofmeyr — is that an employer sent its workforce home after the national state of disaster was declared but summoned them back two days later, after it received confirmation that it was regarded as an essential service.

Many social media users’ profiles contain some form of disclaimer that tries to distance themselves from their employers or draw a line between the personal and professional. “Views expressed here are my own” or “Retweets do not imply endorsements” are all the rage but they provide no real protection or immunity if social media activity violates an employer’s policies.

EMPLOYEE COMPLAINS TO THE PRESIDENT AND POLICE

Employees were asked to return to work after the first weekend of the hard lockdown. Two days before the lockdown, however, the employee in question successfully applied for leave to attend a traditional ceremony in the Transkei, in the Eastern Cape.

“Several messages were exchanged between the employer and employee, from which the employee deduced that the employer was unwilling to arrange transport for his return to work,” said Jamieson.

The employee was also told that he would have to take annual leave, if he did not report for work and any further leave would be unpaid.

The employee took to Twitter to voice his frustrations and mentioned the Presidency and the South African Police Service (SAPS) in a tweet, which stayed online for two hours before being deleted. In the tweet, the employee claimed that the employer forced its employees to return to work and required them to take annual leave if they could not. According to Jamieson, the employer took a dim view of the tweet and deemed it misconduct.

“The employer submitted that the employee was guilty of contravening the employer’s Social Media Policy and the Code of Ethics and Standards of Conduct Policy,” said Jamieson.

“In this regard, the employer contended that the employer contended that the employee had engaged in malicious activity that had the potential to harm the reputation of the employer and to bring the latter’s brand into disrepute, especially by using Twitter, which was a widely broadcasted social media platform.”

The employee was dismissed following a disciplinary hearing, he took the case to the CCMA and sought to be reinstated by the company.

CCMA REINSTATES EMPLOYEE BECAUSE OF ‘FRUSTRATING’ CIRCUMSTANCES

In the CCMA’s view, the employee’s conduct had to be considered in the context in which it occurred and the unprecedented circumstances created by the hard lockdown and the confusion it caused for the employer, according to Jamieson.

“The decision to close its operations had been reversed by the employer when the employee found himself trapped in another province,” said Jamieson. Therefore, the CCMA sympathised with the employee’s plight and found it understandable that he became frustrated by a situation beyond his control.

Jamieson also pointed out that the tweet that caused the furore was based on facts because the employer did inform the employee that leave would have to be sacrificed if he did not report for work and the employee removed said tweet immediately after he was instructed to.

The CCMA held that the misconduct by the worker was diminished by the circumstances he found himself in and found that his dismissal was inappropriate. The Commissioner reinstated the employee, without back pay and for the next 12 months, he will have to work with a final warning looming over him.

Jamieson urged employers to take all circumstances surrounding an employees conduct into consideration before determining a sanction, this is especially important when said circumstances are beyond the employee’s control.

“Employers are also reminded that the recommended sanctions contained in disciplinary codes may (and must) be deviated from in appropriate circumstances,” concluded the lawyer.

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Presh JM Reporter

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