29 March 2021 Employment Law Alert

Calm down! It was just a Tweet

In the recent case of Mabusela v Metropolitan Health [2021] 2 BALR 142 (CCMA), the employer was reminded that a sanction of dismissal, seemingly justified by a disciplinary code and social media policy, may not always be warranted. Rather, an employer, must properly consider the circumstances surrounding an employee’s conduct when considering an appropriate sanction.

The employer sent its workforce home after the national state of disaster was declared at the end of March 2020, in order to mitigate the spread of the COVID-19 virus. Two days later, management received confirmation that it was regarded as an essential service and proceeded to advise its employees to return to work after the first weekend of the level 5 lockdown (hard lockdown).

However, the employee was granted leave to attend a traditional ceremony in the Transkei, (two days prior to the hard lockdown). 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. Additionally, he was also advised that if he did not return to work that he would have to take annual leave and, once exhausted, any further leave would be unpaid.

This prompted the employee to send a Tweet to the President and the South African Police Service, claiming that the employer had forced its employees to return to work and, if employees were unable to do so, they were required to take annual leave. The employer viewed the Tweet as 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. In this regard, the employer contended that the employee had engaged in a 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 pursuant to a disciplinary hearing. He challenged his dismissal at the CCMA and sought reinstatement.

The Commissioner found that the employee’s conduct had to be evaluated in the context in which it occurred, in particular the unique situation created by the hard lockdown, which had caused some confusion for the employer. The decision to close its operations had been reversed by the employer when the employee found himself trapped in another province. It was understandable, according to the Commissioner, that the employee became frustrated by a situation beyond his control. There was also some truth to the Tweet because the employer had informed the employee that he would have to sacrifice his leave if he did not report for duty at his workplace. Furthermore, the Tweet had been posted for only two hours before the employee was instructed to remove it, which he immediately did. Even if the posting of the Tweet amounted to misconduct, the Commissioner held that the severity of the misconduct was mitigated by the circumstances surrounding the employee’s misconduct.

The Commissioner held that dismissal was an inappropriate sanction. The Commissioner reinstated the employee, without back pay, on a final written warning, valid for 12 months.

Employers are reminded to take cognisance of the circumstances surrounding an employee’s conduct in determining an appropriate sanction, especially when the 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.

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