Author: Clerice Pillay
In the case of Van der Merwe vs. Momentum Short-Term Insurance (2023), the Commission for Conciliation, Mediation and Arbitration (CCMA) faced a challenging issue regarding workplace conduct and the boundaries of acceptable communication on social media. This case serves as a crucial example of how racist remarks are addressed within the framework of South African labour laws.
The applicant, a claims investigator at Momentum Short-Term Insurance, was dismissed after posting an offensive message on a work-related WhatsApp group. The message read: “I’m sick of this bullshit country and baboon government. No power again for f** sakes.” He posted this on his birthday, frustrated by loadshedding, and deleted it shortly after, following an apology when informed of the offense it caused. He argued that his dismissal was excessively harsh and thus unfair.
The respondent, Momentum Short-Term Insurance, viewed the message as racist, a breach of its social media policy, and a potential reputational risk for the company. They argued that despite the message being deleted and an apology being issued, the gravity of the offense warranted dismissal.
Legal framework and analysis
The Labour Relations Act (LRA) of South Africa provides a comprehensive framework for dealing with dismissals. According to the LRA, a dismissal must be substantively and procedurally fair. Substantive fairness concerns the reason for the dismissal, while procedural fairness addresses the manner in which the dismissal was carried out.
The Commissioner, in this case, noted that the test for determining whether a comment is racist is objective. This means that the determination is based on whether a reasonable person would consider the remark racist, irrespective of the speaker’s intent. The content of the message, whether explicit or implied, is crucial in this assessment.
Key points from the ruling
- Admission of guilt: The applicant admitted to publishing the offensive words. This admission significantly weakened his defense.
- Nature of the comment: The Commissioner found the explanation provided by the applicant confusing. While he admitted to using racist language, he also attempted to downplay the severity by claiming he merely intended to criticise the government as “simple and stupid”. However, the term “baboon” in the South African context is a known racial slur, and its use could not be justified as a mere expression of frustration.
- Human dignity: The Commissioner emphasised that the applicant’s words showed a disregard for human dignity. In the context of South Africa’s historical and social background, comments undermining human dignity based on race are taken very seriously.
- Objective test for racism: The objective test for racism focuses on the impact of the words, not the intent. The content of the message in question was deemed to be racially offensive.
The dismissal of the applicant was found to be both substantively and procedurally fair. The ruling underscored that in a diverse and democratic society like South Africa, maintaining respect and dignity in communication, especially in professional settings, is paramount. The applicant’s claim that he was not racist was irrelevant to the case; what mattered were the racist contents of the message he posted.
This case illustrates the importance of understanding the implications of one’s words and the zero-tolerance approach towards racism in the workplace. It also reinforces the need for companies to have clear social media policies and for employees to adhere to them. If you are looking to strengthen your workplace policies or need advice on managing social media conduct, contact us today. We are here to help you navigate these complex challenges.