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[2019] ZALCJHB 273
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Edcon Limited v Cantamessa and Others (JR30/17) [2019] ZALCJHB 273; (2020) 41 ILJ 195 (LC); [2020] 2 BLLR 186 (LC) (11 October 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No: JR 30 /17
In the matter between:
EDCON
LIMITED Applicant
and
MS
TERESA
CANTAMESSA First
Respondent
COMMISSIONER
KHUMALO N.O.
Second Respondent
COMMISSION FOR
CONCILIATION
MEDIATION
AND ARBITRATION Third
Respondent
Heard: 9
August 2019
Delivered:
11 October 2019
Summary: Review
application – right of employer to discipline employee over
acts committed outside of working environment
– in general has
no jurisdiction or competency to discipline an employee for conduct
that is not work related which occurs
after working hours and away
from the workplace – exception - where such conduct had the
effect of destroying or of seriously
damaging the relationship of
employer and employee between the parties – parity principle –
not to the exclusion of
justified differentiation -
in casu,
employer had right to discipline – dismissal not unfair.
JUDGMENT
CELE, J
Introduction
[1]
This is an application in terms of section 145 (2) of the Labour
Relations Act
[1]
(LRA)
to review and set aside the arbitration award of the second
respondent (Commissioner) issued under the auspices of the third
respondent, the Commission for Conciliation, Mediation and
Arbitration (the CCMA) finding that the dismissal of the first
respondent
(Ms Teresa Cantamessa) was substantively unfair. The
applicant (Edcon) has applied for the award to be replaced with an
order that
Ms Cantamessa’s dismissal be upheld as substantively
fair. Ms Cantamessa opposed the application
Factual Background
[2]
Throughout the hearing of this matter, starting with the internal
disciplinary hearing, the arbitration
hearing and the review
application, facts testified to and argued by the parties were
largely common cause. Ms Cantamessa was employed
by Edcon as a
Specialist Buyer, Ladies Wear (Kelso) and occupied a senior position
though she was not part of management.
[3]
During December 2015, the then President Zuma, as Head of State,
replaced Finance Minister Nhlanhla
Nene with Minister Des van Rooyen.
Public media estimated that the aforesaid cabinet reshuffling caused
a loss of between R250
to R500 billion to the South African economy.
Many South Africans were upset about President Zuma’s cabinet
reshuffling and
on 16 December 2015, South Africa saw the
“#ZumaMustFall” marches in Cape Town and Johannesburg.
President Zuma subsequently
replaced Minister van Rooyen with
Minister Pravin Gordhan as the Minister of Finance. The African
Nation Congress (ANC), as the
ruling party and through its National
Executive Committee, (NEC) publicly defended President Zuma’s
decision. The cabinet
reshuffling caught the attention of public
media, including television programs such as Carte Blanche, which on
20 December 2015
aired a program on the reshuffling. Still on 20
December 2015 at 19h16, while on annual leave since 16 December 2015,
Ms Cantamessa
published the following post onto her Facebook account:
"Watching Carte
Blanch and listening to these fucking stupid monkeys running our
country and how everyone makes excuses for
that stupid man we have to
call a president... President my fucking ass!! #zumamustfall This
makes me crazy ass mad." (sic)
[4]
During the weekend of 3 January 2016, a Ms Penny Sparrow posted a
comment on her Facebook page in which
she,
inter alia
, stated
that in future she would refer to Black people as monkeys, which
comment, not surprisingly, caused an outrage in South
Africa. The
African National Congress (ANC) laid criminal charges against her.
Various public demonstrations, such as marches were
held in response
to that comment. Some of those marches were directed at an estate
agency which was her employer. When her whereabouts
were hounded, she
resorted to hiding. She has since died. All this was in the public
media. At the time that Ms Cantamessa published
her post, her
Facebook profile stated that she was employed by Edcon as a Fashion
Buyer. On 12 January 2016, Edcon received an
email from Ms Amanda
Sibeko, who might be its customer in which she complained about Ms
Cantamessa's Facebook post. She wrote:-
“
I
would like to bring to your attention the attached post by an Edcon
employee on social media. In light of recent occurances [sic]
in our
country I felt it my duty to act on Ms Cantamessa’s post. Her
bIo indicates that she works for Edcon and therefore
associated her
social media with the organisation.
Knowing how entrenched
Edcon is in the black community I would like this to be dealt with in
a serious manner that speaks to the
sentiment of most South Africans;
which is not to tolerate racism of any form.
I decided it’s best
to contact Edcon and not repost her comments on social media. I
appreciate that you might not be the relevant
person for this
complaint but please pass it to the person who can deal with it.
Please
advise[sic] on what transpires from this email.
”
[5]
From 21 January 2016, Twitter users started to mention Ms
Cantamessa’s Facebook post and that
some 351 Tweets mentioned
the post between 14h00 on 21 January 2016 and 13h00 on 22 January
2016. Comments on that social media
platform included
“
@EdgarsSA
what are your thoughts on the degrading racist remarks made by one of
your buyers??we demand answers #MsTeresaCantamessa”
and
“Another one!! #Ms TeresaCantamessa #RacismMustFall
”
[6]
On 22 January 2016, the Sowetan Newspaper published an article about
Ms Cantamessa’s post entitled
“
Racist Monkey slur
strikes again”
Several Twitter users who reacted to Ms
Cantamessa's Facebook post demanded answers from Edcon and in some
instances, threatening
not to do business with Edcon. Edcon initiated
investigations into the matter and upon conclusion determined that it
was necessary
to call Ms Cantamessa to a disciplinary enquiry. In
summary the reasons for Edcon were that:
6.1
When she published her Facebook post, Ms
Cantamessa's Facebook profile clearly indicated that she was employed
by Edcon;
6.2
Ms Cantamessa's Facebook post was made
public and was read by customers and the public at large;
6.3
Ms Cantamessa's Facebook post attracted
negative media attention and negative social media activity (which
placed Edcon's reputation
at risk); and
6.4
Ms Cantamessa's Facebook post was
considered to be racist and did not conform to the values of Edcon's
business.
[7]
As a consequence of the above, Ms Cantamessa was called to an
internal disciplinary enquiry and was
charged with misconduct
described as:
"On the 20th of
December 2015, you made an inappropriate racial comment on Facebook.
Such action placed the Company's reputation
at risk and has breached
the employment trust relationship."
[8]
Ms Cantamessa's disciplinary enquiry was held on 23 February 2016 and
on 3 March 2016, the chairperson
of the disciplinary enquiry found
her guilty of the abovementioned charge. In summary, the chairperson
found Ms Cantamessa guilty
of the charge for the following reasons:
8.1
The Facebook post was indeed racist (at her
disciplinary enquiry, Ms Cantamessa argued that it was not racist and
that she was merely
highlighting incompetence);
8.2
Although Ms Cantamessa published the
Facebook post outside of working hours, Edcon was associated to the
post given that her Facebook
profile clearly indicated that she was
employed by Edcon;
8.3
The Facebook post resulted in the risk of
reputational damage to Edcon and her credibility as an employee;
8.4
Ms Cantamessa breached the values of Edcon
by making the Facebook post;
8.5
As a senior employee and from a point of
common sense, Ms Cantamessa was expected to communicate in a
professional, courteous and
sensitive way (regardless of whether the
communication took place during or after working hours).
[9]
Upon making a finding of guilt, the chairperson considered mitigating
and aggravating
circumstances and summarily dismissed Ms Cantamessa.
Aggrieved by her dismissal, Ms Cantamessa referred an unfair
dismissal dispute
to the CCMA. Conciliation failed to resolve the
dispute and the matter proceeded to arbitration. At arbitration it
was common cause
that Ms Cantamessa was dismissed for misconduct and
she only challenged the substantive fairness of her dismissal,
procedural fairness
was not in dispute.
[10]
Edcon called three witnesses in support of its case. They are Messrs
Gwendoline Lekola (Senior Specialist,
Dispute Management); Sunil Jain
(General Manager, Buying); and Vuyo Mtawa (Executive, External
Communication). Ms Cantamessa was
the only witness to testify in her
case. On 28 December 2016, the commissioner issued the assailed
arbitration award. He concluded
that Ms Cantamessa's dismissal was
substantively unfair and he awarded her maximum compensation of 12
month's salary. In describing
what enquiry the commissioner was
called to determine, he stated that he was required to decide whether
Edcon was entitled to act
against Ms Cantamessa, given that she
published her Facebook post while she was on annual leave and not at
work. His chief findings
may be summarised as follows:
10.1
Ms
Cantamessa's Facebook post did not pertain to her work or to Edcon; A
reasonable internet user would not have associated Edcon
with the
content of Ms Cantamessa's post simply because Ms Cantamessa had
stated on her Facebook page that she worked for Edcon.
[2]
10.2
In
terms of a High Court judgment from the United Kingdom -
Smith
v Trafford Housing Trust
[3]
,
a reasonable reader of Ms Cantamessa's Facebook post would not have
associated her comment with Edcon
[4]
10.3
Edcon's
2011 Social Media Policy did not apply to Ms Cantamessa's Facebook
post because the policy only applied if she had used
Edcon's
equipment and facilities when she published the post on Facebook. The
commissioner further stated that "
As
a result, Jain correctly conceded during cross-examination that as
the Applicant had used her own equipment to post the message,
she did
not contravene the 2011 social media policy. This settles the
matter.
"
[5]
.
10.4
Edcon's 2014 Internet Policy did not apply
because again, Ms Cantamessa did not use Edcon's equipment/facilities
nor did she publish
the post while she was at work;
10.5
Edcon's
Code of Ethics did not apply to the case because the Code states how
employees should behave "when at work". In
other words, the
commissioner concluded that the Code of Ethics only applied to Ms
Cantamessa while she was at work and not outside
of working hours. Ms
Cantamessa did not breach Edcon's Disciplinary Code in that the
conduct complained of did not take place during
working hours
[6]
;
10.6
There was no persuasive or convincing
evidence that Ms Cantamessa's Facebook post impacted negatively,
financially or otherwise
on Edcon. Save for one Twitter user who
threatened to close his Edgars account, no other customers made such
threats and there
was no evidence to show that the particular Twitter
user did in fact close his account or that he was in arrears with his
accounts;
10.7
Edcon failed to comply with the parity
principle in that it dismissed Ms Cantamessa for publishing the post
but only issued final
written warnings to those Edcon employees who
"liked" her post on Facebook;
10.8
Ms Cantamessa's statement that President
Zuma was "stupid" did not constitute racism.
Grounds for review
[11]
Ms Cantamessa identified seven grounds for review in this matter. The
submissions are essentially
that: -
11.1 No
other reasonable commissioner could have concluded that because Ms
Cantamessa published the Facebook post
outside of working hours,
Edcon was not entitled to discipline her because the commissioner was
required, in determining whether
Edcon was entitled to discipline Ms
Cantamessa for her Facebook post which was made outside of working
hours to take the following
factors into account:-
11.1.1
Ms Cantamessa's Facebook profile clearly
indicated to the public at large, that she was employed by Edcon;
11.1.2
Although Edcon's disciplinary Code states that the Code tells
employees "how to behave
at work" this does not, as a
matter of course mean that Edcon is prohibited from disciplining
employees for conduct which
takes place outside of working hours,
particularly if such conduct puts Edcon's reputation at risk;
11.1.3
Given Ms Cantamessa's level of seniority,
she should have known that her after-hours conduct on Facebook could
negatively impact
on her employment relationship with Edcon
(particularly because her Facebook profile clearly indicated that she
was employed by
Edcon);
11.1.4
The derogatory terms used by Ms Cantamessa
in her Facebook post manifest from a deep-rooted racism and it was
immaterial as to whether
the post was made outside or during working
hours. It is the racist attitude of Ms Cantamessa which she displayed
on Facebook which
affected the employment relationship. By making the
racist Facebook post, Ms Cantamessa's conduct indicated to Edcon that
she is
not an employee who promotes and respects Edcon's values which
it has entrenched over many years;
11.1.5
There was a link between Ms Cantamessa's
conduct and the employment relationship;
11.1.6
Had the commissioner taken the above
factors into account, the outcome of the award would have been
different in that he would
not have concluded that Edcon was not
entitled to discipline Ms Cantamessa at all;
11.1.7
The commissioner committed a reviewable irregularity by placing
too much weight on Edcon's
Social Media and Internet Policies in
determining whether Ms Cantamessa's dismissal was fair. Ms Cantamessa
was not dismissed for
breaching either of these policies. She was
dismissed for making a racist comment and by doing so, placing
Edcon's reputation at
risk. It was irrelevant, in determining whether
Ms Cantamessa's dismissal was fair, as to whether or not the policies
in question
were applicable. What the commissioner was required to
do, was to determine whether Ms Cantamessa's Facebook post was racist
and
placed Edcon's reputation at risk;
11.1.8
In the award, the commissioner relied heavily on the High Court
judgment from the UK in
Smith
v Trafford Housing Trust
.
[7]
Firstly,
in relying on this judgment, the commissioner ignored and/or failed
to appreciate South Africa's unique history and the
devastating
effects of apartheid and how the racist terms used by Ms Cantamessa
in her Facebook post affect black South Africans
inside and outside
of the workplace. Secondly, the commissioner's finding (based on the
UK judgment) that a reasonable reader of
Ms Cantamessa's Facebook
post would not have associated it with Edcon is an unreasonable
finding which is not supported by the
evidence presented at the
arbitration proceedings. The unchallenged evidence at the arbitration
was that a customer lodged a formal
complaint with Edcon when she
read Ms Cantamessa's Facebook post. The customer noticed, when she
read the post that Ms Cantamessa
was employed by Edcon. This evidence
demonstrated that a Facebook user (being a customer of Edcon) made
this association herself
and hence she reported the Facebook post to
Edcon;
11.1.9
In paragraph 74 of the award, the commissioner concluded that Ms
Cantamessa's Facebook post,
in so far as she called President Zuma
stupid, was not a racist comment. Although the commissioner
concluded that this part
(concerning President Zuma) of the
Facebook post was not racist, the commissioner did not consider or
make a finding on whether
"listening to these fucking stupid
monkeys running our country
" was racist. The commissioner
committed a reviewable irregularity by ignoring and/or not
considering this part
(fucking stupid monkeys)
of the Facebook
post in determining whether the post was racist or not. Had the
commissioner considered this part of the Facebook
post, the outcome
of the award would have been different in that the commissioner would
have concluded that the Facebook post which
Ms Cantamessa published
was in fact racist;
11.1.10 The
commissioner concluded that because Edcon failed to show that it
suffered a financial loss as a consequence
of Ms Cantamessa's
Facebook post, her dismissal was unfair. The commissioner conclusion
in this regard ignores the fact that Ms
Cantamessa was not dismissed
for causing a loss to Edcon. She was dismissed, as per the charge,
for making a racist comment which
"placed the Company's
reputation at risk".
It was not necessary for Edcon, when it
presented its case to demonstrate an actual loss. As per the charge,
Ms Cantamessa placed
Edcon's reputation at risk;
11.1.11 No
other reasonable commissioner would have concluded that Edcon did not
comply with the parity principle when
it dismissed Ms Cantamessa. It
was not unfair of Edcon, when it disciplined those employees who
"liked"
the post to have issued final written
warnings as opposed to dismissing them as in the case of Ms
Cantamessa. Those employees who
"liked"
Ms
Cantamessa's Facebook post did not make the racist comment. As such
their conduct is distinguishable;
11.1.12
No other reasonable commissioner would have, given the circumstances
of the case, awarded Ms Cantamessa
maximum compensation. In effect,
the commissioner rewarded Ms Cantamessa's conduct in circumstances in
which her attitude to the
matter was that Edcon had no right to go to
her Facebook post and that because she published the post outside of
working hours,
it was none of Edcon's business. This attitude coupled
with Ms Cantamessa's racism (regardless of the fact that the post was
made
outside of working hours) ought to have weighed heavily on the
commissioner when he considered the amount of compensation to award.
At arbitration she noticeably did not ask for re-instatement but
sought compensation.
Legal entitlement of
Edcon to discipline Ms Cantamessa
[12]
It remained common cause throughout the dismissal dispute that Ms
Cantamessa made an entry on
her Facebook page during her leave, using
her computer and her data. The comment made had nothing to do with
her duties as an employee.
Her Facebook page indicated though that
she was employed by Edcon. It had therefore firstly to be determined
whether her conduct
put her within the disciplinary reach of her
employer. The general rule is that an employer has no jurisdiction or
competency to
discipline an employee for conduct that is not work
related which occurs after working hours and away from the
workplace.
[8]
The
findings by the commissioner, that none of Edcon’s disciplinary
policies were applicable to Ms Cantamessa’s alleged
misconduct,
constitute no defect as outlined in section 145 of the LRA and are
therefore not reviewable. However, where misconduct
does not fall
within the express terms of a disciplinary code, such misconduct may
still be of such a nature that the employer
may nonetheless, be
entitled to discipline its employee. Likewise, the fact that the
misconduct complained of occurred away from
the workplace would not
necessarily preclude the employer from disciplining its employee in
respect thereof.
[9]
The
Court held in
Hoechst
(Pty)
Ltd v Chemical Workers Industrial Union and Another
[10]
that:
“
In
our view the competence of an employer to discipline an employee for
misconduct not covered in a disciplinary code depends on
a
multi-faceted factual enquiry. This enquiry would include but would
not be limited to the nature of the misconduct, the nature
of the
work performed by the employee, the employer’s size, the nature
and size of the employer’s work force, the position
which the
employer occupies in the market place and its profile therein, the
nature of the work or services performed by the employer,
the
relationship between the employee and the victim, the impact of the
misconduct on the work force as a whole, as well as on
the
relationship between the employer and the employee and the capacity
of the employee to perform his job. At the end of the enquiry
what
would have to be determined is if the employee’s misconduct
‘had the effect of destroying or of seriously damaging
the
relationship of employer and employee between the parties’ (See
Anglo American Farms T/a Boschendal
Restaurant v Konjwayo
(1992) 13 ILJ573
(LAC) 589 (G –H.)
”
[13]
In
Dolo
v Commission for Conciliation, Mediation and Arbitration and
Others
[11]
an
employee who was a casino table supervisor was dismissed for fraud
when she and her boyfriend had committed fraudulent activities
over
time against the employer of her boyfriend. She then agreed to give
evidence in a criminal matter against the boyfriend for
indemnity
against prosecution. Her employer became aware of that misconduct
against a different employer and she was subsequently
charged for it
and was dismissed. She challenged the dismissal for her misconduct
that was perpetrated outside her working place.
The commissioner
seized with the matter found that her employer could no longer trust
her to handle money and to supervise other
employees handling money.
This Court upheld the right of her employer to discipline her and it
found that it was reasonable for
the commissioner to hold that her
employer could no longer trust her, especially since she worked with
money.
[14]
In
Custance v SA Local Government Bargaining Council and Others
[12]
this court, per Pillay J, found the following:
“
...the
derogatory terms used manifest a deep-rooted racism which has no
place in a democratic society. Whether the word was uttered
on or off
duty was immaterial as it is the attitude that persists which, when
on duty, affects the employment relationship.
”
[15]
In
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others
[13]
the employee alleged that he had not specifically been told that he
could not use racist epithets. It made no difference that the
misconduct was not set out in a policy. The Code of Good Practice on
Dismissal provides that employees may be disciplined if they
break
rules regulating conduct in or of relevance to the workplace.
Misconduct can vary from dishonesty, assault, sexual harassment,
fraud etc. Thus, the main principle is to determine the connection
between the misconduct and the employer’s business. Thereafter,
the employer has to prove to which extent it has affected the
employment trust relationship.
[16]
In principle therefore, Edcon could exercise discipline over Ms
Cantamessa provided it established
the necessary connection between
the misconduct, if any, and its business. The comments made by Ms
Cantamessa did not in and of
themselves relate to the employer -
employee relationship. The only source for the connection lies in
that her Facebook page indicated
that she worked for Edcon. However,
Edcon is a merchandiser of its various products in a competitive
industry. Ms Cantamessa as
a Specialist Buyer played a pivotal role
in the acquisition of such products, including ladies trending styles
and fashion for
Edcon. The success of its business depends also
largely on how it markets itself to the general public. Therefore,
having a good
name is an essential asset or quality of Edcon to the
general public. In as much as Buyers of Edcon can and often remain
anonymous
to the general public, once their identities are exposed to
the general public, it must only be in a positive and not negative
environment or circumstance, otherwise such disclosure imposes a risk
that the name of Edcon may be brought into disrepute. Therein
lay the
connection between the conduct of Ms Cantamessa with the relationship
she had with her employer. She had to avoid being
a controversial
employee in the public eyes where she could be associated with Edcon.
[17]
South Africa is undoubtedly constituted largely by Black citizens. It
is not surprising therefore
that Edcon operated in areas where the
Black citizens are likely to be the main or majority source of its
past, present and future
customers. Since 1994 the South African
Government is run by the majority of Black citizens due to the advent
of democratic elections.
Before the advent of democracy, the South
African government was notorious for its legislated racism. Some
White minority citizens
were known to refer to Black citizens by
various derogatory expressions, including the monkey slur. The usage
of the monkey slur
by Ms Cantamessa should therefore never be seen in
isolation as though such usage had no history. Put differently, to
fully understand
what Ms Cantamessa was saying, it is of importance
that the history behind the monkey slur be considered. It is an
emotive expression
of our sad past where racial discrimination in
South Africa, and in the workplace in particular, was the order of
the day. No doubt,
Ms Cantamessa having lived in South Africa for
more than 20 years knew about it. She said that she was angry when
she took to Facebook
and did something she had never done before. In
her opening remarks, at arbitration, she conceded that certain South
Africans were
offended by her Facebook post and that certain South
Africans perceived the said post as racist.
[18]
In 2016, when Ms Cantamessa took to Facebook to post her remark, the
government of the day was
largely constituted by Black citizens, in
respect of whom racial slurs were used before and after the
democratic elections of 1994.
In this context, she could reasonably
have not been referring to the government when using the slur. Put
differently, it makes
no sense to substitute “monkey”
with “government” in her comment. The relevant potion
would read:- “…
.and listening to these fucking stupid
government running our country and how everyone makes excuses for
that stupid man…….
” She was clearly referring
to a number of persons whom she said were stupid and every one of
them made excuses for the stupid
man to be called a president. She
could not reasonably be construed as referring to a single entity,
namely the government. Her
defence that she was referring to
government is accordingly devoid of any merits. Therefore the usage
by her of “…
..and listening to these fucking stupid
monkeys running our country and how everyone makes excuses….”
was in the circumstances a racial slur directed at Black persons in
government, running the country. It certainly was a highly
offensive
remark in respect of which Edcon was entitled to take disciplinary
measures, lest its name be put into disrepute for
tolerating racism.
[19]
Democracy practised in South Africa allows citizens to express
themselves in various public gatherings
and marches when racism lifts
its ugly head. While Ms Cantamessa was the first to make the racial
slur before Ms Penny Sparrow,
Ms Cantamessa’s remark did not
immediately catch the attention of the public as did that of Ms
Sparrow. Ms Sparrow’s
haunting by South Africans at large, even
to her place of employment, was a clear indication of what could have
happened to Ms
Cantamessa. Two reasons account for Ms Cantamessa’s
situation. One is that her comments were limited to a circulation by
fewer people. While she made it in a private Facebook account, it did
leak out, albeit to a limited extent and within that range
Edcon was
associated with her. It exposed Edcon to a risk of reputational
damage. The fact that no damage was proved by Edcon was
not a valid
defence. The charge sheet did not allege that any such damage was
actually suffered. The second reason it that Edcon
took decisive
disciplinary actions as soon as the matter came to light and it also
publicly distanced itself from Ms Cantamessa’s
conduct. Edcon
described these actions as nipping the problem from its bud. The
decisive disciplinary actions entailed the immediate
suspension of Ms
Cantamessa and subjecting her to an internal disciplinary
hearing.
[14]
It
is that hearing which led to her dismissal.
[20]
In terms of section 16 of the Constitution Act
[15]
,
everyone has the right to freedom of expression which includes:-
20.1
Freedom of the press and other media;
20.2
Freedom to receive or impart information or
ideas;
20.3
Freedom of artistic creativity and
20.4
Academic freedom and freedom of scientific
research.
[21]
The rights as mentioned above do not however extend,
inter
alia
,
to advocacy of hatred that is based on race, ethnicity, gender or
religion and that constitutes incitement to cause harm. Ms Cantamessa
accordingly enjoyed the freedom of expression which included freedom
of the press and other media as well as freedom to receive
or impart
information and ideas, provided her posting did not extend to
advocating hatred based on race which constitutes incitement
to cause
harm. She enjoyed the freedom to criticise government of the day
where she felt it erred in its administrative manoeuvring.
She
however did not have the right to resort to racial slurs to vent her
anger. Her conduct amounted to advocating hatred based
on race which
constitutes incitement to racial disharmony at the workplace and in
the general public. Her misconduct was serious
in nature, was caused
by a senior personnel of Edon who had even previously been a manager
and it had the potential of seriously
harming Edcon’s business.
The derogatory terms used manifested a deep-rooted racism which has
no place in a democratic society
as said in
Custance
v SA Local Government Bargaining Council and Others.
[16]
The
more than 20 years of experience Ms Cantamessa had with a clean
record were overweighed by the aggravating factors. Dismissal
was an
appropriate sanction, in the circumstances. There is nothing
problematic in the treatment of co-perpetrators differently,
depending, for instance, on the extent of their participation to such
misconduct, as Edcon did in the present matter. The applicability
of
the parity principle is not to the exclusion of prevailing different
circumstances of the offending employees.
[22]
In conclusion therefore, I am satisfied by submissions of Edcon over
those of Ms Cantamessa that
the commissioner misconceived the nature
of the enquiry he was called to determine and failed to evaluate the
evidential material
placed before him properly, with the result that
he reached a conclusion which no reasonable decision maker could have
made.
[17]
[23]
In the premises, the following order is made:
Order:
1.
The arbitration award issued in this matter
by the second respondent (commissioner) is reviewed and set aside;
2.
The dismissal of the first respondent (Ms
Cantamessa) by the applicant (Edcon) was substantively fair;
3.
No costs order is made.
_____________________
H.Cele
Judge
of the Labour Court of South Africa.
Appearances:
For the Applicant:
Mr V Oosthuizen
Instructed by:
Shepstone and
Wylie.
For Respondent: Dr
G Ebersohn
Instructed
by: Gerrie
Ebersohn Attorneys.
[1]
Act
66 of 1995 as amended.
[2]
See
para 52 of the award.
[3]
(2012)
EWHC 3221 (Ch).
[4]
See
para 57 of the award.
[5]
See
para 59 of the award.
[6]
See
paras 64, 65 and 67 of the award.
[7]
(2012)
EWHC 3221 (Ch).
[8]
See
National
Education, Health and Allied Workers Union obo Barnes v Department
of Foreign Affairs
(2001) 22 ILJ 1292 (BCA) at 1294.
[9]
See
in this respect
Hoechst
(Pty) Ltd v Chemical Workers Industrial Union and Another
(1993) 14 ILJ 1449 (LAC
);
City of Cape Town v South African Local Government Bargaining
Council and Others
[2011] 5 BLLR 504 (LC).
[10]
Ibid
at pg 1459 F-H.
[11]
(2011)
32 ILJ 905 (LC).
[12]
(2003)
24 ILJ 1387 (LC) at 1391.
[13]
[2002]
6 BLLR 493 (LAC).
[14]
See
in this regard
Saaiman
and Another v De Beers
Consolidated
Mines (Finsch Mine
)
(1995) ILJ 1551 (IC) where a it was found that there was
prema
facie
evidence that the employees action had, at the least, a potential to
impact on the employer/employee relationship.
[15]
Act
108 of 1996.
[16]
(2003)
24 ILJ 1387 (LC) at 1391.
[17]
See
in this regard
Goldfield
Mining SA v CCMA
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 16.