No Freedom to Falsely Criticise Your Employer in the Media (Cliff Dekker Hofmeyer – Jose Jorge and Steven Adams)

September 2019

In the matter of Joseph Nzimande and two others v Didben NO and Others, the applicants were dismissed for making false statements to the media, bringing the name of their employer into disrepute and failing to obey an instruction to them to raise their grievances through the recognised internal channels.
The applicants were employed by the South African subsidiary of a multinational mining company. The applicants were part of a march to the Department of Labour to deliver a memorandum of grievances against their employer. The march was attended by about 600 fellow employees. One of the applicants had invited the media to the march where they were interviewed by the SABC. The interviews were subsequently aired on three radio stations.
In the interviews the applicants, amongst other things, alleged that their employer was forcing employees to work long hours without pay and that it had withheld 2.6 billion (currency unspecified) from its Australian head office that was meant to be distributed amongst the employees.

These statements were false and, unsurprisingly, the employer dismissed the applicants for their conduct. The applicants referred an alleged unfair dismissal dispute to the CCMA. At the arbitration hearings they initially denied that they had made the statements but then conceded that they had, when the radio interviews were played to them. The employer argued that they had breached its communications policy by making unauthorised statements about it to the media. The applicants contended that they did not need permission from their employer to make the statements as they were exercising their right to freedom of speech.
The arbitrator was not impressed with this explanation. He found them guilty of the allegations against them, and found that their dismissals were fair. To make matters worse for the applicants, he ordered costs against them because of the manner in which they had conducted themselves during the arbitration hearings.
The applicants then applied to the Labour Court to have the arbitration award reviewed and set aside. The Labour Court found that the statements made by the applicants in the media had a detrimental effect on the employment relationship as they brought the employer’s name into disrepute. The court found that although employees were entitled to raise legitimate grievances and to threaten to exercise their constitutional right to strike, they were not entitled to make false and defamatory statements against their employer. The court found that the applicants had acted on a frolic of their own and outside the rules of engagement. They had embarked on the march as employees and had made false statements against their employer contrary to established policies. Their contention that they were merely exercising their freedom of speech and did not need their employer’s permission to make statements to the media was without merit.
The Labour Court held that freedom of expression is not unfettered. It was unacceptable of the applicants to make false statements against their employer even in the adversarial context of industrial action. The court dismissed the review application.
This judgement serves as a caution to disgruntled employees that they should carefully consider any public utterances against their employers. If there is a workplace communications policy, they should comply with the policy. More importantly they should at all times refrain from making false statements against their employer, lest they be prepared to suffer the consequences.
K. Cowley
(Chairperson – (CEA – TESD)