Plenty of people would like to swear at Eskom; plenty already do. But a recent labour court decision makes it clear that Eskom employees, whatever their private views, should watch their language about their bosses, at least on social media.
The case involves senior technician Iteseng Nkgwang, who was dismissed in April 2018 after 13 years with the power utility.
Nkgwang’s senior manager was Nosipho Mtanza, though he did not report directly to her. He had also never met her at the time he posted a message about her on Facebook: "When you are disabled you have to treat people like rubbish."
Just as carelessly, he posted a message about Eskom provincial general manager Linda Ntombeni: "You think I am scared of Linda Ntombeni, black mother full of shit."
Nkgwang had also not met Ntombeni at the time he posted this.
In response, Eskom charged Nkgwang in terms of its disciplinary code, under a section dealing with conduct reasonably regarded as unacceptable in terms of "Eskom’s values and ethics".
The disciplinary hearing was chaired by Eskom pricing manager Dirk Opperman. Though the power utility argued for dismissal, Opperman decided Nkgwang should be suspended without pay for a fortnight. He also ordered that if Nkgwang should again commit a serious transgression, further action would be taken that could lead to a "more severe sanction".
Undeterred, just one day later, Nkgwang posted this on Facebook: "We will speak about Dirk Opperman one day, the idiot came to a disciplinary hearing with a pre-determined outcome. If he feels like it he must take me to court like GrizzlyBear said she will take me to court, I am waiting."
To illustrate his views further, the post was accompanied by emojis of faeces.
Opperman in turn lodged a grievance against Nkgwang. After a disciplinary hearing, Nkgwang was fired. He then referred a dispute to the Commission for Conciliation, Mediation & Arbitration, where his main argument was that he couldn’t be punished for something he did off-duty and outside the workplace. Moreover, he said, Eskom’s social media rules were only sent to employees after he was dismissed.
Nkgwang’s main argument was that he couldn’t be punished for something he did off-duty
After the commissioner decided the dismissal was substantively and procedurally fair, Nkgwang took his dispute to the labour court.
The acting judge who heard the matter, Bradley Conradie, said while Nkgwang had listed a number of grounds on which the commissioner’s award should be set aside, the court could find no basis to interfere with it.
For example, Nkgwang claimed the commissioner had agreed there were "signs" that Opperman was biased against him, but she had failed to say anything about this in her award. As Conradie pointed out, Nkgwang had not shown where in the record he found backing for this claim.
Repeat offender
"The fact of the matter is that on December 27 2017 the employee attended a disciplinary hearing to answer serious allegations relating to the derogatory comments he made on Facebook about senior managers," said Conradie.
"He had barely walked out of the hearing, so to speak, when he insulted Opperman, who is also a senior manager.
"In my view that conduct at that stage would be enough to justify the commissioner’s decision that the dismissal was fair, notwithstanding the fact that the employee had not yet received his sanction of 14 days’ suspension."
As to the argument that the Facebook remarks shouldn’t count because they were not posted during work hours, the court found the commissioner could not be faulted for concluding that Nkgwang’s conduct outside the workplace had an impact on his employment and that he could be dismissed for it.
Perhaps the most surprising aspect of the story is that, despite many public warnings, there are still people like Nkgwang who blithely post inappropriate messages on social media with no care for the consequences.
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