- Labour Court finds dismissal too harsh, and commissioner’s decision upheld.
- Bible verse WhatsApp post during xenophobic tensions was not hate speech.
- The employer failed to meet the strict Sidumo test to overturn the compensation award.
A bakery manager posted a biblical verse about the rising power of foreigners on his WhatsApp status at the height of xenophobic tensions in the workplace. That single decision triggered his dismissal and sparked a legal dispute over whether what he did was serious enough to cost him his job.
The message was shared at a time when employees were already deeply divided over the employment of foreign nationals. A court ultimately found it to be provocative and a serious error of judgment, but not severe enough to cost him his job.
The Labour Court dismissed an application by Erarite Pty Ltd, trading as Khayelitsha Superspar, to overturn a CCMA award that had found the dismissal of Claudious Gogo to be substantively unfair.
A workplace divided over foreign nationals
Claudious Gogo, a Zimbabwean national working as a bakery manager, posted a biblical verse referencing the growing dominance of foreigners. The post appeared on his personal WhatsApp status and briefly on a management WhatsApp group.
This happened during a period of significant unrest. A Facebook group had accused the employer of favouring foreign nationals and called for protest action. The situation escalated to the point where law enforcement became involved, and the workplace became deeply polarised.
Management stepped in, engaged with employees and issued clear warnings against any conduct that could inflame the situation. Foreign nationals were specifically urged to keep a low profile and avoid making things worse.
Despite all of this, Gogo went ahead and posted the message. He later apologised and claimed the group post was accidental, but he stood by his personal status and maintained that he was entitled to post what he wished on his own profile.
At the disciplinary hearing, the employer concluded that the post was harmful and provocative, given the tensions in the workplace and decided to dismiss him.
A grave error of judgment, but not a dismissible one
At arbitration, Gogo admitted that he had committed misconduct but argued that dismissal was too harsh a response and that a final written warning would have been more appropriate.
The commissioner accepted that Gogo had deliberately posted the message and described his conduct as “ill-considered and a grave error of judgment.” The commissioner further observed that Gogo had reacted to hostility by effectively showing his xenophobic colleagues the “proverbial middle finger.”
However, the commissioner drew a clear distinction between what Gogo had done and the conduct of the Facebook group, which had escalated toward calls for protest and potential confrontation. The commissioner found that “the Bible verse was not hate speech” and that Gogo was not trying to incite violence but rather to provoke and upset his colleagues.
While the conduct was clearly inappropriate, the commissioner concluded that dismissal was too harsh and that progressive discipline would have been the better route. Gogo, who did not seek reinstatement, was awarded three months’ compensation.
Superspar pushes back on the award
Erarite Pty Ltd challenged the award on review, arguing that the commissioner had failed to properly appreciate the seriousness of the misconduct given the broader context of xenophobia in the workplace.
The employer contended that Gogo had ignored clear instructions, undermined workplace stability and damaged trust in his role as a manager. It argued that dismissal was a justified response in a volatile environment and that the commissioner had failed to appreciate the real operational risks posed by his conduct.
The employer further argued that the commissioner’s decision was unreasonable and one that no reasonable decision maker could have reached.
The court refuses to second-guess a reasonable decision
Judge T Gandidze rejected these arguments, emphasising that the threshold for review is a stringent one. The Court reiterated that the central question is whether the commissioner’s decision falls outside the range of reasonable outcomes that a decision maker could reach.
The court made this clear when it stated that “the question is whether the commissioner’s decision falls outside the range of what a reasonable decision-maker could reach.”
In assessing the record, the court found that the commissioner had properly understood the nature of the misconduct and the surrounding context. Importantly, the court noted that Gogo had not been charged with hate speech but with posting harmful and provocative material.
The judgment confirmed that “the commissioner was aware that Gogo had committed misconduct, but he also distinguished Gogo’s conduct from that of the Facebook group.”
On the question of sanction, the court reaffirmed that commissioners are required to make an independent determination of fairness and are not simply bound to defer to an employer’s decision to dismiss.
Judge Gandidze noted that “the commissioner made a value judgment” and emphasised that mere disagreement with that judgment is not a basis for review.
The court ultimately held that “the commissioner’s finding cannot be said to be one that falls outside a range of reasonable decisions,” confirming that the award met the Sidumo standard.
Compensation stands, costs shared
The Labour Court dismissed the review application and upheld the three months’ compensation awarded to Gogo.
Each party was ordered to bear its own costs.
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