19 June 2010 by

Letter of dismissal or defamatory statement?

"Some cause happiness wherever they go, others, whenever they go." - Oscar Wilde

The issue of whether or not the contents of a dismissal letter advising an employee of the reasons for his dismissal can found an action for defamation or an action for injuria, has recently been considered by the High Court in Byrne v Masters Squash Promotions CC & another [2009] JOL 24144 (GSJ).

The employee managed the squash activities of his employer. At the same time and to the knowledge of his employer, he had an interest in another squash entity. Both the employer and the employee thought there would not be a conflict of interest.

One of the employer's squash team members reported to him that the employee had been soliciting him to join the employee's own squash club. The employer, quite rightly, regarded this as a breach of the employment agreement and issued a letter of dismissal on 24 hours notice to the employee, stating that the employee '(has) been soliciting business from our client base which is a total violation of the trust which we believed would be respected in our mutual interest'.

The employee sued in the Magistrates Court for damages, alleging that the letter was defamatory, that the defamation was published to the secretary who typed the letter and that he suffered an injuria, as he was shocked and distressed at his dismissal and by receiving the letter.

The matter went on appeal to the High Court (the Court), where it was common cause that the dictation to the typist of the letter constituted publication to her and that the contents were prima facie defamatory of the employee. The only issue for decision was whether or not publication was justified in the circumstances in which it was published.

The employer relied on qualified privilege (See Herselman NO v Botha 1994 (1) SA 28 (AD)). "The issue of privilege is approached by considering whether or not 'these statements were relevant to the occasion', relevance being essentially 'a matter of reason and common sense, having its foundation in the facts, circumstances and principles governing each particular case' assessment of whether defamatory statement was relevant to the occasion is 'essentially a value judgment'."

The Court held that it is trite that an employee is entitled to know the basis on which any disciplinary action is taken against him and particularly the sanction of dismissal. The Court held further that the employer had a moral and social duty, over and above its legal duty, to communicate to the employee the reasons for his dismissal (See De Waal v Ziervogel 1938 AD 112). The employee also requires the reasons for dismissal in order to exercise his or her rights. The Code attached to the Labour Relations Act further requires that reasons be given.

The Court held publication to the typist to be privileged, relying on the Herselman case.

The Court did not consider the consequences of publishing the contents of such a letter to other third parties such as other employees except for the obiter comment that if publication of the letter to the secretary were to be defamatory, communication thereof to shop stewards or immediate managers would also constitute publication of defamatory matter.

The Supreme Court of Appeal previously considered whether defamatory statements made of a Magistrate by a union organiser to union members were justified (See National Education, Health and Allied Workers Union and another v Tsatsi 2006 1 ALL SA 583 (SCA)). After weighing up the above principles the Court held that the publication of the defamatory matter was privileged as the union had the obligation to convey the matter to its members who were entitled to receive the information.

But what is the position of the employer who decides to name and shame employees dismissed for misconduct and circulate their names throughout the organisation to show how it deals with offenders?

Apart from having to rely on a qualified privilege (if available) such a name and shame process also raises constitutional issues such as the right to privacy and dignity and the right to choose a trade, profession or occupation. This is a topic for another day.

Faan Coetzee, Director, Employment Law

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