Van Wyk v Independent Newspapers Gauteng (Pty) Ltd & others (2005) 26 ILJ 2433 (LC)

Principle:

Criticism of management made in an e-mail and circulated to others may justify dismissal on the basis that the trust relationship has broken down between the parties.

Facts:

The chief sub-editor of the Pretoria News had a heated argument with her superior, the deputy editor, while on duty one evening. The following day she addressed an e-mail to the managing director in which she criticized him and other members of senior management. She circulated the e-mail to six other members of management. A day later she sent an e-mail to her superior, a close friend of hers, in which she vented her feelings and frustrations at work, especially with her editor. Neither forwarded the e-mail to anyone else but a copy was delivered to the editor in an unmarked envelope. The employee was disciplined and dismissed on the basis that the trust relationship had broken down.

At arbitration proceedings, several colleagues testified and while not condoning the e-mails, said that the sanction of dismissal was inappropriate. The employee accepted that she should have received a ‘good dressing down’ for the first e-mail, but submitted that the second e-mail should not have been admitted because of its private nature. The arbitrator upheld the dismissal as fair on the basis that management had every right to feel insulted by the first e-mail. The arbitrator held the second e-mail was admissible because it had been sent to a communal computer which was the property of the employer.

On review the employee relied on the Interception and Monitoring Prohibition Act 127 of 1992 to argue that the chairperson of the disciplinary hearing was prohibited from having regard to the second e-mail. The court did not agree because the employer’s technology usage policy specifically cautioned employees not to assume that e-mails would not be read by other persons. The court was also satisfied that the first e-mail alone justified dismissal.

Extract from the judgment:

[At 2439E] In my view, it is very serious misconduct when a senior employee challenges the managing director of a newspaper for the inept manner in which he manages the newspaper. She also deliberately shared this opinion with others...It is an aggressive e-mail. It is a declaration of animosity. In this letter the applicant opened a collision course with her employer. The first e-mail on its own calls for a dismissal.

In my view, there are few employers that would welcome criticism couched in this style, and regard it as an invitation to address problems in the workplace. If that was the applicant’s intention this e-mail was certainly not the way to go about it. A polite letter would have sufficed... The fact that the applicant has a volatile temper and addresses people in a very straightforward manner, is no reason why her employer should tolerate this kind of behaviour.