Edcon Limited v Cantamessa and Others (JR30/17) [2019] ZALCJHB 273; (2020) 41 ILJ 195 (LC); [2020] 2 BLLR 186 (LC) (11 October 2019)

Edcon Limited v Cantamessa and Others (JR30/17) [2019] ZALCJHB 273; (2020) 41 ILJ 195 (LC); [2020] 2 BLLR 186 (LC) (11 October 2019)

The court held that Edcon was entitled to discipline and dismiss Ms Cantamessa for her Facebook post, despite it being made outside working hours and off-site. The post was publicly associated with Edcon due to her profile, was a racial slur directed at Black persons in government, and had the potential to seriously damage Edcon's reputation and the employment relationship. The commissioner erred by focusing narrowly on the applicability of internal policies and failing to appreciate the broader connection between the misconduct and the employment relationship. The parity principle did not require identical sanctions for employees who merely 'liked' the post. Dismissal was an appropriate...

Citation
[2019] ZALCJHB 273
Parties
Applicant: Edcon Limited; Respondent: Ms Teresa Cantamessa; Respondent: Commissioner Khumalo N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
11 October 2019
Case Number
JR30/17
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award set aside; dismissal of Ms Cantamessa found substantively fair.
Judges
Cele
Legal Topics
Unfair Dismissal, Social Media Misconduct, Employment Relationship, Parity Principle, Freedom of Expression, Racism in the Workplace
Labour Law Civil Procedure Unfair Dismissal Social Media Misconduct Employment Relationship Parity Principle Freedom of Expression Racism in the Workplace

Case Brief

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Parties

Edcon Limited

Applicant

Ms Teresa Cantamessa

Respondent

Commissioner Khumalo N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the employer had the right to discipline and dismiss an employee for conduct committed outside the workplace and working hours.
  2. 2 Whether the Facebook post by Ms Cantamessa constituted misconduct justifying dismissal.
  3. 3 Whether the arbitration award finding the dismissal substantively unfair was reasonable.

Ratio Decidendi

The court held that Edcon was entitled to discipline and dismiss Ms Cantamessa for her Facebook post, despite it being made outside working hours and off-site. The post was publicly associated with Edcon due to her profile, was a racial slur directed at Black persons in government, and had the potential to seriously damage Edcon's reputation and the employment relationship. The commissioner erred by focusing narrowly on the applicability of internal policies and failing to appreciate the broader connection between the misconduct and the employment relationship. The parity principle did not require identical sanctions for employees who merely 'liked' the post. Dismissal was an appropriate...

Court Disposition

Arbitration award set aside; dismissal of Ms Cantamessa found substantively fair.

Orders

  • The arbitration award issued by the second respondent is reviewed and set aside.
  • The dismissal of the first respondent by the applicant is declared substantively fair.