Aadil Patel on how important it is to be careful about what you post on social media
Your social media posts, as well your comments and likes on other people’s posts, can be liked or shared and can easily make their way to your employer. A racist comment made on social media is very serious and it is potentially accessible to hundreds, if not thousands, of other social media users. Even if the post is deleted, once it is shared or if some has taken a screenshot, it can continue circulating on social media or the internet.
In Dagane v SSSBC and others (JR2219/14), an employee, employed as a warrant officer put himself in this situation after posting racist remarks on Julius Malema’s Facebook page. He wrote, “[F***] this white racist [s***]! We must introduce Black apartheid. Whites have no ROOM in our heart and mind. Viva MALEMA.” “When the Black Messiah (NM) dies, we’ll teach whites some lesson. We’ll commit genocide on them. I hate whites.” (Sic)
The remarks were picked up by a reporter, an article was published and the remarks made their way to the employee’s employer. He was dismissed. The bargaining council found the dismissal was fair. He then approached the Labour Court and once again the court had to deal with a case involving racist comments made by employees. The Labour Court held that “the use of racist language is despicable.”
As proof of the employee’s remarks, the employer relied on print-outs from Google that incorporated the employee’s remarks. The employee argued that he did not make the comments. His defence was that someone created an account using his details or someone hacked into his account. The commissioner at the bargaining council found that on a balance of probabilities, the employee had made the comments on Facebook. The employee argued the employer could not rely on the print-outs as they were hearsay evidence and inadmissible. Although the commissioner agreed that the printouts amounted to hearsay evidence, she nevertheless used her discretion to admit them as evidence.
The commissioner considered that the employee was a police officer required to protect citizens irrespective of their race. She did not interfere with the employer’s decision to dismiss the employee and held the dismissal was fair. The Labour Court found that this was reasonable. It held that the employee “was dismissed for very serious misconduct. He, a SAPS officer, had unfairly and openly discriminated against others (whites) on the basis of race through blatantly discriminatory racial remarks; by blatantly threatening the future safety of white people; and by making remarks on Facebook which amounted to hate speech.”
The Labour Court held that “there can be no doubt that dismissal was a fair sanction”.
Aadil Patel is the National Head of the Employment practice at law firm Cliffe Dekker Hofmeyr
