Nkuna // Outsurance Insurance Company Limited [2021] 4 BALR 408 (CCMA):

Arbitration award

There is no doubt that advancements in technology in recent years have drastically changed the working environment and created opportunities for a ‘gig economy’ to develop. The COVID-19 pandemic has also forced a change in the working environment resulting in the more frequent use of technology. 

With companies making greater use of technology by utilising electronic communication and social media platforms to interact with its employees on a more frequent and real time basis, it is unfortunate that employees do not always fully appreciate that their possible misuse of these platforms could result in greater employment issues. 

Too often employees, who are working in a more informal setting (from home), communicate or post information without giving due consideration to the impact these communications and posts may have on not only them but also their colleagues and the company for which they work.

In the matter of Nkuna // Outsurance Insurance Company Limited 2021 the issue of inappropriate comments on a work Whatsapp group resulted in the dismissal of an employee. 

Nkuna was employed with Outsurance as an inbound sales advisor. On 11 May 2020 Nkuna received a call from a client. During the call the client advised Nkuna that “… they do Afrikaans, they insure Afrikaans people, ja.“. Nkuna took offense to this statement, interpreting it racist. Nkuna then posted the following comment on the work Whatsapp group as a result of her frustration with the client’s comment, “The MF was a racist piece of sh*t! He said he’d go with an Afrikaans company that helps Afrikaans people (insure).” At the time she was working from home along with the rest of her team members. The Whatsapp message was viewed by Nkuna’s team members and subsequently brought to the attention of her sales manager, Candice Kirchner. 

On 19 May 2021 Nkuna was suspended and thereafter attended a disciplinary hearing on 26 and 27 May 2021 via Microsoft Teams. Nkuna was dismissed on 5 June 2021 for, inter alia, misconduct relating to introducing a racial narrative on a social media platform used as a business tool and potentially bringing the company’s name into disrepute. 

Subsequent to Nkuna’s dismissal it was revealed to the general sales manager, Lynette Kellerman, that the sales team manager, Thandeka Ndaba, had previously (July 2019) created a separate work Whatsapp group labelled “Blacks only” and excluded certain team members based on the colour of their skin from this group. In addition, Ndaba had also previously referred to a client as a “b*tch n*gger” in the presence of the team. Ndaba was issued with a final written warning for these actions and changed the Whatsapp group name from “Blacks only” to “The Legends” so as to include white team members as well. Nkuna learnt of this development only after she was dismissed.

Nkuna challenged the substantive fairness of her dismissal on the basis that discipline for the same or similar instance of misconduct was not consistent within the company. 

At arbitration Outsurance argued the following:

– Nothing in the client’s comment to Nkuna could be interpreted as a racial attack;

– Nkuna had breached Outsurance’s Social Media Policy and in terms thereof, dismissal was an appropriate sanction;

– Nkuna had also been unprofessional by sending the Whatsapp message to the work Whatsapp group and her conduct brought the company’s name into disrepute;

– Two other employees had previously been dismissed for making racist comments on two separate occasions. Subsequent to Nkuna’s dismissal another employee had also been dismissed for making a racist comment on the work Whatsapp group; and

– Given the circumstances surrounding Ndaba’s misconduct, i.e. the instance being in 2019 and her genuine apology, it was appropriate to issue her (Ndaba) with a final written warning as opposed to dismissing her.

Nkuna made the following submissions at arbitration:

– The comment made by the client frustrated Nkuna and she took to the work Whatsapp group, being a safe space, to vent her frustration in relation to the client’s comment;

– She did not ‘introduce’ racism to the work Whatsapp group or the team in general as Ndaba had previously done with her comment of “b*tch n*gger” and creating the “Blacks only” Whatsapp group;

– She conceded that, while what she did was wrong and hurtful, she was angry; and

– Her conduct had been no different to the conduct of Ndaba. Instead of being dismissed, Nkuna argued that she should have received a final written warning as Ndaba had received. 

The Commissioner determined that the dismissal was substantively unfair on the following basis:

1. While Nkuna was frustrated by the client’s comment, she did not act out against the client but instead took to the work Whatsapp group where foul language was often used by the team members. Therefore, not much weight was attached to such foul language by the team. One team member gave evidence that he was not at all offended by Nkuna’s comment;

2. The allegation that Nkuna ‘introduced’ racism was incorrect based on the evidence lead in relation to Ndaba’s actions;

3. The two previous instances of racist comments, which resulted in the dismissal of the two other employees, were far more serious in that their comments were more racially offensive than the comment made by Nkuna. Hence making dismissal more appropriate for those employees;

4. Referencing the SARS case of Kruger, the Commissioner also reiterated that one instance of racism in the workplace does not automatically result in grounds for terminating the employment relationship. Each case must be determined on its merits;

5. There was no evidence presented that would lead a reasonable person to believe that the Nkuna is racist in nature. Progressive discipline would have resulted in her changing her behaviour. Ndaba was issued with a final written warning and given a chance to change her behaviour, the same opportunity should have been afforded to Nkuna.

Nkuna was awarded two months’ remuneration as compensation for her substantively unfair dismissal.  

In summary, employees and employers should be mindful of what they ‘say’ or post on business communication platforms, inclusive of general social media platforms to which everyone may have access. 

In this matter, while racist behaviour may not be tolerated within the workplace, employers must be aware that each scenario is different and, more importantly, evaluate each instance of alleged misconduct on a case by case basis. This will assist in comparing misconduct when determining appropriate and applicable disciplinary measures. Employers must be able to clearly explain what the alleged racist behaviour is/was and, where possible, how it affected the working environment. 

It is also very important to note that employers should be consistent with their discipline policies in such matters to avoid issues of inconsistent discipline for the same or similar behaviour.  

Candace Bachmann – Associate Attorney

*This cover has been designed using resources from Freepik.com