This top South African executive was fired for WhatsApp messages – what you need to know

A recent labor case in South Africa involved a senior Transnet executive who was fired for making inappropriate comments circulated on a WhatsApp group.

The case is notable because it took place shortly after the new Code of Good Practice to Prevent and Eliminate Harassment in the Workplace went into effect, lawyers from ENSAfrica say.

“The employee in this matter held a senior position with the employer from 1986 to October 2021. In July 2021, an employee engaged in an inappropriate conversation with his male co-workers that included obscene comments about the bodies of their female co-workers. . This conversation was recorded and widely shared on the WhatsApp group.

“The employee, as well as everyone who participated in the conversation, with the exception of one individual, were charged and subsequently fired for misdemeanors in violation of the employer’s rules to combat harassment, discrimination and bullying. politics,” ENS Africa said in a statement.

“They engaged in inappropriate conversations in which degrading, malicious, degrading and offensive remarks were made towards their female colleagues.”


Arbitration

The employee referred the unfair dismissal dispute to the Transnet Negotiation Board, where he argued that his dismissal was materially unfair on the grounds that:

  • He was not aware of any disciplinary rules he had broken;
  • His transgression did not merit a dismissal sanction; as well as
  • The rule was applied inconsistently.

The Commissioner was ultimately satisfied that the staff member’s remarks fell within the definition of harassment and malicious gossip and that this amounted to misconduct.

However, the commissioner concluded that, since the staff member was not as guilty as the other participants in the conversation, and since one of the other participants was not disciplined, and the rule was applied inconsistently, the dismissal sanction was too harsh and essentially unfair.

The commissioner ordered the reinstatement of the worker, subject to a final written warning, as well as training and counseling of the worker.


New Code of Persecution

From the point of view of the new code of good practice for the prevention and elimination of harassment in the workplace in South Africa, “harassment” is generally understood to mean:

  • Undesirable degrading behavior;
  • Behavior that creates a hostile or intimidating work environment for one or more employees or is calculated or results in an inducement to comply with actual or threatened adverse consequences; as well as
  • Which relates to one or more of the grounds on which discrimination is prohibited under the Employment Equality Act 1998.

“The new code aims to eliminate all forms of workplace harassment, from sexual harassment to racial, ethnic or social harassment, as well as physical, verbal and psychological harassment,” ENSAfrica said in a statement.

“It includes an open list of activities that may amount to workplace harassment, including bullying, defamation, spreading rumours, demotion without explanation, harassment, sabotage, ostracism, humiliation, insult or humiliation of an employee.”

ENSAfrica noted that the code provides further guidance that:

  • An individual incident or event may be considered harassment; as well as
  • Whether behavior is harassment or not should be judged objectively from the perspective of the employee reporting the harassment. Thus, the main focus of the investigation into whether harassment took place is on the impact of the conduct on the applicant.

Lesson for employees: harassment is unacceptable and a single case of harassment can lead to dismissaldepending on the circumstances and their severity.

Politicians

However, the new Code provides equally important guidance on the measures employers must take against harassment to ensure that employees who have committed serious acts of harassment are not reinstated, as happened in the aforementioned case, according to ENSAfrica.

To this end, employers should:

  • Adopt an anti-harassment policy consistent with the provisions of the new Code;
  • Communicate the content of the harassment policy effectively to all employees;
  • Outline the procedures to be followed by whistleblowers alleging harassment;
  • Describe the existence of counseling, treatment, care and support programs for employees; as well as
  • Develop clear anti-harassment procedures that allow issues to be addressed in a gender-sensitive, confidential, effective and efficient manner.

The Commissioner’s decision in the above case to find an employee guilty of harassing her female colleagues with obscene and vulgar language is a clear example of a single instance of an unacceptable form of harassment. It is reported by ENSAfrica.

“The conclusion that the worker should be reinstated seems to deviate from the principles set out in the new code.

“During the arbitration proceedings, the employer cited the testimony of the employees, who received the comments of the employee. They revealed that they felt humiliated, as if they had been visually and verbally sexually harassed, that they felt uncomfortable in the workplace, and that their co-workers stared at them and distanced themselves from them.

“In particular, these employees became uncomfortable working with people who made obscene and vulgar comments about them.”

Since the new Code requires allegations of harassment to be considered from the perspective of the complainant or the victim, one could argue that a decision to reinstate a worker based on inconsistent application of the rule is very mild finish under the circumstances, as it lacks due attention and sensitivity to those who have suffered persecution, ENSAfrica said.

The employee decided to defend himself, arguing that:

  • The conversation was not for anyone else to hear;
  • If he knew the conversation was wrong, he would have reported it;
  • His children listened to the tape and saw nothing wrong with what was said and
  • This is how people of color talk, especially men.

“The manner in which the staff member attempted to protect himself, as outlined above, in our opinion constitutes further harassment and the Commissioner should have given this sufficient weight in determining the appropriate sanction,” ENSAfrica said.

“The employee also stated that women who do not dress appropriately in the workplace should be talked to. He presented photographs of one of his female colleagues, whom he allegedly dressed provocatively and posed for.”

Thus, the employer found himself in a situation where the employee returned to the workplace, where his behavior adversely affected many other employees, simply on the grounds that the rule was applied inconsistently.

“In a society with unacceptable levels of harassment, especially against women, it has become increasingly important that employees be held accountable for their actions, both in general and in relation to allegations of harassment.

“Given that the new code provides that an employee can be found guilty and fired for a single incident of harassment, it is important that employers develop clear policies and procedures regarding harassment and ensure that information about the code is disseminated, as well as training is provided to avoid claims by employees about ignorance or inconsistent application of the rules.”

Comment by Suemeyi Hanif (Executive Director) and Kerry-Anne Do Couto (Employee) from ENSAfrica.


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