Threatening WhatsApp message gets worker fired in South Africa
An electrical assistant working at a South African firm was fired over what his employer said were threatening messages.
The matter was brought before the Commission for Conciliation, Mediation and Arbitration (CCMA), which found in favour of the employer.
“The CCMA confirmed that a WhatsApp message can present grounds for dismissal,” stated law firm Neumann van Rooyen.
“But as always, the facts of each case will need to be considered to determine whether there are grounds for dismissal or not.”
In the case of Masondo / AG Electrical (Pty) Ltd [2022] 4 BALR 400 (CCMA), Neumann van Rooyen noted that two contradictory views were placed before the commissioner.
“The employer perceived the WhatsApp as an intentional threat of physical violence, whereas, the employee indicated that he was merely trying to help his fellow co-workers who faced a similar challenge as he did,” the attorneys said.
According to the arbitration award, the problem arose shortly after the company enacted a “short-time” policy.
The company’s CEO testified that Covid–19 had restricted work opportunities.
After consultation with the relevant bargaining council, the union, and representatives, the company adopted a short-time policy for a few weeks.
The case document includes one of the messages the employee posted to the WhatsApp group.
He was unaware the CEO of his employer was also in the group.
Think eff can help us all when someone is trying to fool us those two guys from church, we never call union us to meeting so is fine we didn’t kill that stupid so I will try to the Zulu nation what going on on, those guys they total commit crime Malema must know this by Tuesday we still organising phela we can lose our money someone want to run with our money.
I think e.f.f. can help still early some people we have no information true lets find the leaders of the country like clicks what they do
According to the case document, the employee also threatened to kill an official of the South African Electrical Workers Union on the same WhatsApp group.
Attorneys Neumann van Rooyen stated that any dismissal of an employee must be fair and just in terms of the Labour Relations Act.
Therefore, if an employee is to be dismissed for a WhatsApp message, this dismissal must meet the requirements of the Act.
Neumann van Rooyen said the employee did not have any remorse or provide sound reasons for the message he had sent.
“The result was that the CCMA held that the employee’s conduct was seen to have broken down the employer-employee relationship, and his dismissal was thus confirmed to be substantively and procedurally fair.”
The company dismissed the employee on 15 May 2021 after posting the alleged death threat to the work WhatsApp group on 9 May 2021.
The arbitration took place on 24 November and was handed down on 8 December.
Emma Sadleir, social media and Internet law expert
This case follows Discovery Health’s dismissal of 10 employees over WhatsApp messages in which they allegedly planned to maliciously shut down the company.
Digital Law Company founder Emma Sadleir previously told MyBroadband employees are disciplined or dismissed for two categories of offences related to what they say about their job on social media:
- Employees who bring the company’s name into disrepute.
- Employees who breach their duty of good faith towards a company.
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