Cosawu on behalf of Khumalo and Royal Ascot Superspar (2006) 27 ILJ 2452 (CCMA)

Principle:

  • Freedom of expression should be respected in the workplace.
  • Where an employee is dismissed for publishing information critical of the employer, this may be unfair if the dismissal is a penalty for breaching a rule that is not relevant to that workplace.

Facts:

The employee, a merchandiser in a food store, wrote an article for a socialist newspaper alleging that the employer was underpaying its staff in terms of the applicable sectoral determination, and reporting two incidents in which a fellow employee had allegedly been abused by the employer. The paper was distributed amongst other employees. The employer denied the truth of these allegations and, after a disciplinary enquiry, dismissed the employee for gross misconduct in that he instilled a negative approach towards management via a derogatory speech and comments in the article. The article was also considered defamatory.

The commissioner considered whether the charges against the employee constituted a valid rule of the workplace, and, if so, whether they were breached. The commissioner found that, on the evidence, the staff were demoralized prior to the publication of the article and the factual content of the article was true.

As to whether the article was defamatory and derogatory, the commissioner referred to the employee's constitutional right to freedom of expression and was of the view that this right can be exercised in the workplace. The commissioner found that the employee had not brought the employer's name into disrepute but rather was justified in drawing attention to the employer, which by ignoring unfair labour practices, had affected and the rights and dignity of workers. This was not a breach of any rule relevant to the workplace. The employer was ordered to reinstate the employee.

Extract from the award:

[At 2459G] [The employer]   had not produced any rule or standard with which the applicant was charged. However many rules of the workplace on which employers rely in misconduct cases emanate from the implied common-law duties flowing from a contract of employment. Our law regards a contract of employment as a contract of utmost good faith. An employee is required to act in the best interest of the employer. He is not to indulge in a conflict of interest or put his personal interests above those of the employer. He is also duty bound to uphold the employer's good name and reputation and not to bring the employer's name into disrepute. He is, in general, required not to make himself guilty of improper conduct.

[At 2461C] If the respondent found the article derogatory, it failed to appreciate that freedom of expression lies at the heart of democracy, even if the applicant's views were considered controversial by some. The respondent's contention that the workplace was not the appropriate place to express his views, is equally flawed. Historically, this country's democracy was born, among others, such as our schools, also in the workplace. It was the workers who fought discrimination, authoritarianism and oppression. They contributed much to the labour laws as we know them today. And for this, they used the workplace as a forum... Why now, would the freedom of expression in the workplace be denied after democracy had been obtained?