- The court found that the phrase used was inappropriate, but did not justify dismissal when assessed in context.
- The commissioner’s findings were upheld as reasonable and based on the evidence presented.
- The employer failed to show that the conduct warranted dismissal or justified interference on review.
A WhatsApp message containing the phrase “they don’t have the balls” did not justify dismissal when properly assessed in context.
This was the finding of the Labour Appeal Court in Bakhresa SA Pty Ltd v Roshelle Jaipal and Others, where the court upheld an arbitration award reinstating Roshelle Jaipal.
The court examined the actual wording used, the surrounding communication, and the evidence presented at arbitration. It ultimately concluded that the employer had not established misconduct of a nature that warranted dismissal.
Background and events leading to dismissal
Bakhresa SA Pty Ltd employed Roshelle Jaipal as a Procurement Supervisor. During an unprotected strike, tensions arose between employees and management. In this context, Jaipal sent a WhatsApp message to Irshaad Moidheen, the employer’s Legal and Human Resources Manager.
In that message, she stated, “That message is for rao and Vivek because they don’t have the balls to deal with us so since you passing their messages to us you can pass this message about our safety to them. We are not the enemy. We are here to work.”
The employer charged Jaipal with disorderly behaviour involving abusive language and dismissed her following a disciplinary hearing. The charge alleged that her conduct was not conducive to good employment practices and had caused a breakdown in the employment relationship. The employer maintained that the relationship depended on trust and mutual respect.
Following her dismissal, Jaipal referred an unfair dismissal dispute to the CCMA. Commissioner Charles Oaks found that the dismissal was substantively unfair and ordered reinstatement with retrospective effect. The employer sought to review the award in the Labour Court, which dismissed the application. This led to the appeal before the Labour Appeal Court.
The commissioner’s findings on the phrase
Commissioner Oaks was required to determine whether the language used constituted misconduct justifying dismissal. When assessing the phrase, the commissioner did not confine the analysis to the literal wording.
He found that, “The Applicant did use the language in a message which was viewed as unacceptable by the Respondent. It must, however, not be confined to the plain meaning but viewed in the context it was made and must be viewed objectively when assessing its impact.”
The commissioner further accepted Jaipal’s explanation for the wording, recording that, “The Applicant testified that she was frustrated when she used the words in question and the literal meaning was not intended. She merely indicated that management should toughen up in the context of their request for safe passage into the workplace.”
The commissioner also took into account how the message was received at the time and the absence of any immediate escalation by its recipient. Looking at the totality of the evidence, he concluded that the conduct did not justify dismissal and that the sanction imposed by the employer was inappropriate.
Court’s assessment of the phrase
The Labour Appeal Court considered whether the commissioner’s findings could be faulted and held that the contextual approach adopted was correct and supported by the evidence.
The court emphasised that meaning must be assessed with reference to the surrounding communication. It noted that, “The words ‘we are not enemies, we are here to work’ used in the self-same message gives the word balls a different context and meaning.”
The court also pointed out that interpretation requires attention to text, context and purpose, stating that, “In any interpretation exercise, the text, context and purpose of any item to be interpreted are to be considered unitarily.”
In dealing with the meaning of the word used, the court observed that, “The literal meaning of the word is spherical or rounded objects, typically used in sports, games and in a slang context it refers to testicles.”
Having considered these factors, the court found that the commissioner’s approach to the phrase and its meaning could not be faulted.
Evaluation of the evidence
The Labour Appeal Court further considered how the evidence had been evaluated at arbitration and noted that the commissioner was required to assess the explanation provided by Jaipal together with the surrounding facts.
The court stated that, “A reasonable commissioner would not have ignored the evidence of Ms Jaipal as to what she meant to convey and why.”
It also examined the reaction of the recipient of the message, noting that the message was passed on without any indication that it was regarded as seriously offensive at the time. The response that followed was not described as containing any “abomination,” which reinforced the contextual reading of the exchange.
The court also accepted that Jaipal had expressed regret for the wording used, but held that this did not automatically translate into a finding of misconduct warranting dismissal.
Reasonableness of the arbitration award
The central question before the court was whether the arbitration award was one that a reasonable decision maker could reach. In addressing this, the court restated the applicable test, confirming that “A review court must ascertain whether the arbitrator considered the principal issue before him or her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.”
The court emphasised that the statutory duty to determine fairness rests with the commissioner, and that an employer must prove that the reason for dismissal is a fair one related to the employee’s conduct.
Applying this standard, the court found that the commissioner had considered the principal issue, evaluated the evidence, and reached a conclusion that was reasonable. There was no basis for interference.
Outcome
The Labour Appeal Court found no basis to interfere with the commissioner’s findings on the WhatsApp message. The appeal was dismissed, and the reinstatement order remained in place.
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