by Kirsten Eiser, a Partner & Shane Johnson, a Professional Support Lawyer at Webber Wentzel

​​​​In a recent matter (Ndzimande and Others v Didben N.O and Others (JR 1404/14) [2019] ZALCJHB 73 (2 April 2019)) the Labour Court considered the dismissal of three employees who made disparaging statements about their employer on public radio. The Labour Court ultimately upheld the arbitration award of the CCMA, which dismissed the employees. Key facts to the finding were that: there was a policy related to external communications by employees; the employees in question understood the consequences of breaching this code and made statements which were false, malicious and damaging to the employer's reputation. The decision is important for employees and employers alike.

Media Interviews

On 28 September 2012, a group of employees, having waived the grievance process contemplated by the relevant collective agreement, marched to the Department of Labour. The employees had prepared a memorandum of grievances which would ultimately be handed to the department at the conclusion of the march. The grievances related to alleged non-payment of monies due to employees and other issues related to health & safety, shift systems, medical aid deductions and exploitation of employees.

During the course of the march, three employees made statements in interviews with journalists of SABC radio stations (Ikwekwezi FM, Ukhozi FM and Motsweding FM) about their employer and the grievances. These statements were aired on these radio stations shortly thereafter.

Charges of misconduct

As a result of these statements, the employees faced three charges of gross misconduct and after following a disciplinary process, the employees were dismissed.

Dismissals found to be fair

The employees challenged the fairness of their dismissals at the CCMA. The presiding commissioner found their dismissals to be fair. The commissioner reasoned that the employer had a standing policy pertaining to external communications. The commissioner found that the employees ought to have been aware of this rule and that they failed to comply with the rule by making statements to the media.

The employees then approached the Labour Court on review alleging that the commissioner committed various gross irregularities and assisted the employer during the arbitration proceedings. On review, the Labour Court considered the arbitration proceedings and the evidence led by both parties. The Labour Court ultimately upheld the arbitration award of the CCMA.

Code of Communication

A key element of the employer's case in this matter was the Code of Communication in place at the workplace. In terms of this code, employees were not permitted to make statements to the media without prior authorisation from a designated authority within the business. At the time, the employer's Chief Operations Officer (COO) was the designated authority responsible for providing permission to employees who sought to appear in the media. The code also provided that the authority to communicate with the media is vested in the COO and that employees should decline comment if approached by the media. It is common cause that the employees in question did not comply with the code prior to being interviewed by the media.

Evidence was led that the Code of Communication was brought to the employees' attention during their induction, one of the employees already had a final written warning for a pervious breach of the code and that prior to the march, the employees had been advised to desist from making false and incorrect statements about the employer.

Statements made by employees

The employer also submitted that the statements made by the employees on radio were false and misleading. This had the effect of bringing the employers name into disrepute. The statements also had the potential to aggravate other employees and undermine workplace relations.

The employees in question argued that they were exercising their right to freedom of expression by making the statements on radio. Further, the employees claimed that they had laid various grievances against the employer which remained unresolved.

The ultimate question before the court was whether the statements made by the employees on radio constituted misconduct that was gross enough to justify dismissal.

The court established that the employees in question were aware of the Code of Communication in the workplace and that they understood the consequences of breaching it. The court said that, in the ordinary course, there is nothing wrong with employees raising legitimate grievances and threatening strike action. However, it is incorrect for employees to make false and defamatory statements in public which may have serious repercussions for their employer. This is further enhanced when employees are subject to specific policies and procedures in relation to public statements. The employees were held to have acted "on a frolic of their own outside of the rules of engagement".

The court held that the statements made were false, malicious and damaging to the employer's reputation. In making these statements, the employees also breached the employer's Code of Communication. The sanction of dismissal was held to be appropriate in the circumstances.