Was the dismissal for racist social media conduct substantively fair?

Question: I made a racist and derogatory video on TikTok and my video was viewed by a lot of people, including my employer. I was subsequently dismissed from my employment. I believe the dismissal was substantively unfair. Should I institute legal action against my employer?

DBM’s Gerrit Coetzee explains how the court weighs free speech against reputational harm

The Labour Relations Act 66 of 1995, more specifically section 185 of the Act, establish the right not to be unfairly dismissed or subjected to unfair labour practices.

However, dismissing an employee for using derogatory or insulting language is generally regarded as substantively fair dismissal, especially where the conduct makes the continued employment relationship intolerable or damages the employer’s reputation.

In the case of Edcon Limited vs Cantamessa and Others (2019) ZALCJHB 273, the Labour Court ruled that a senior employee’s off-duty racist Facebook post, which linked her to the company, warranted dismissal.

The court found that the dismissal was substantively fair, emphasising that offensive social media misconduct can damage an employer’s reputation.

Despite the employee being off duty, the court found that linking the employer to racist, offensive comments created severe reputational risk, overriding free speech, and justified summary dismissal.

Section 16 of the Constitution guarantees freedom of expression, but excludes advocacy of hatred based on race, ethnicity, gender or religion.

Therefore, the court will balance the employee’s right to freedom of speech against the employer’s right to protect their reputation and interests.

While you did not break any rule, your conduct, however, constitutes a misconduct and legal action will not yield positive results.

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