Fair of firms to fire back if jokes backfire
• The CCMA has upheld the axing of an employee who tried some dark humour over load-shedding
In Commission for Conciliation Mediation and Arbitration (CCMA) in the case of National Union of Metalworkers of South Africa obo Mahlangeni v Ford Motor Company SA (Pty) Ltd (2023) 32 CCMA, the applicant, a Mr Mahlangeni, was employed by Ford Motor Company of South Africa (Pty) Ltd as an operator at one of its plants.
On May 3 2023, Mahlangeni posted a message on Ford ’ s group (without any authorisation) stating that “due to the Stage 6 Load Shedding, the Ford Struandale Engine Plant would on May 3 2023, be closed for the afternoon and night shift from 8pm until 6am on the following morning”. In addition, the message stated that “the affected shifts would be placed on a lay-off on Wednesday May 3 2023 and that in the absence of any changes the affected employees would be required to come to work on the following day, May 4 2023.”
About 47 employees were part of the group.
As a result of posting the above message to the group, Mahlangeni was charged and found guilty of misconduct for “falsifying information
HE SAID FORD HAD NOT SUFFERED ANY LOSSES AND FORD’S PRODUCTION WAS NOT AFFECTED AS A RESULT OF HIS MESSAGE
with regard to the lay-off communication and attempting to sabotage the production on May 3 2023…” and was thereafter, dismissed. Dissatisfied, Mahlangeni challenged the substantive fairness of his dismissal at the CCMA (he did not contest the procedural fairness of his dismissal).
FORD’S VERSION
Ford argued, among other things, that Mahlangeni’s misconduct was “very serious and tantamount to fraud” and could have “resulted in approximately 47 employees not reporting for duty”. This, in turn, would have affected Ford ’ s production, it would have failed to meet its daily targets and not have been able to meet customers’ demands/needs.
For the reasons mentioned above, Ford argued that the dismissal was substantively fair.
APPLICANT ’ S VERSION
Although Mahlangeni did not dispute sending the message to the group, he claimed that it was deleted “within seconds ” and that he sent another message to the group stating that the earlier message was “just a joke” (emphasis added).
The latter was, however, disputed by Ford who argued that the message was only deleted after management intervened. Mahlangeni further argued that by deleting the message, he acknowledged that what he had done was wrong.
Mahlangeni also said that Ford had not suffered any losses and Ford’s production was not affected as a result of his message. Based on the latter, Mahlangeni argued that the sanction of dismissal was too harsh.
CCMA’S ANALYSIS
In analysing the evidence presented, the commissioner referred to the Code of Good Practice: Dismissal of the Labour Relations Act 66 of 1995. In particular, the commissioner emphasised that the code provides that
“employers and employees should treat each other with mutual respect” and that
“employers are entitled to satisfactory conduct and work performance from their employees ”.
Given that Mahlangeni only challenged the substantive fairness of his dismissal and, in particular, the appropriateness of the sanction of his dismissal, the commissioner referred to item 7 of the code which requires any person who is considering whether a dismissal for misconduct is unfair to consider, “whether or not the employee contravened rule or standard regulating conduct in, or of relevance to the workplace; and (a) if the rule or standard was contravened, whether or not … (iv) dismissal was the appropriate sanction for the contravention of the rule or standard” (our emphasis).
Turning to the question whether dismissal was the appropriate sanction for the misconduct, the commissioner considered the “gravity of the misconduct” (our emphasis) as well as the importance of deterring fellow employees from engaging in such misconduct. In considering the gravity of the misconduct, the commissioner stated that one must have regard to the context of the message.
The commissioner noted that SA is facing many challenges as a result of loadshedding and that “the disruption of electricity supply has placed many if not all employers in a very precarious position in their ability to meet their daily targets in relation to production is under immense strain”. The effect of the latter is that customers ’ demands are not met, which leaves them frustrated. The commissioner stated importantly that “the issue of load-shedding and its adverse implications is a very serious matter and not a matter of a joke”.
Referring to Mahlangeni’s misconduct, the commissioner said employees who are part of the group would have believed that false message given the context above, and this would have deterred them from coming to work. This would have affected Ford ’ s production, resulting in it not meeting its daily targets and causing irreparable harm. According to the commissioner, Mahlangeni was also dishonest in that the posting of the message was deliberate and a calculated effort. The fact that the message was deleted did not rescue Mahlangeni since it should never have been posted in the first place.
The commissioner, therefore, held that dismissal was an appropriate sanction and substantively fair given the severity of the misconduct.
IMPORTANCE
Employees who post messages on their employer’s social media groups must consider the impact of their deeds on the employer and other employees.