Labour Court ruling on employee dismissal highlights social media guidelines

The Labour Court has ruled against an application by Academy Brushware (Pty) Ltd to overturn a finding by the Commission for Conciliation, Mediation and Arbitration (CCMA) in favour of an employee dismissed for gross insubordination. The case involved photographs posted by the employee on social media in March 2017, which the employer alleged were inconsistent with the company's reputation and professional standards.

Geswent, a computer clerk with the company since 2002, posted photographs alongside a cutout model used in the company's marketing campaigns. Despite being instructed not to do so by her manager Kingham, Geswent continued to post further photographs on the same day. The employer claimed this conduct was the basis for the charge of gross insubordination.

However, Geswent disputed receiving such an instruction from Kingham. The Labour Court ruled that the employer bore the burden of proving their version of events. The court found insufficient evidence to support Kingham's account, emphasizing that insubordination requires a deliberate refusal to obey a lawful and reasonable instruction.

The court noted that a finding of insubordination requires more than simply failing to comply with an employer's wishes. It must be assessed in its context, considering the seriousness of the misconduct and whether dismissal is an appropriate sanction. Factors such as the employee's length of service, disciplinary record, and the company's actual harm or complaints weighed against the employer's case.

Several factors, including the lack of an established workplace code governing social media posts, the insignificance of the posted photographs compared to the company's own marketing material, and the employee's compliance after being instructed to remove the posts, all worked against the employer's case. The court ultimately dismissed the employer's review application.