Good day everyone, and welcome to another discussion in our “What if” series, where we bring you insights in the format of a “what if” question on the ever-evolving landscape of employment law. I am Ross Simon from Maserumule Corporate Employment Law, and in today’s discussion we will be unpacking:
What if a frustrated employee uses "colourful language" during a workplace dispute, is dismissal justified?
In today's landscape, the line between provocative communication and dismissible misconduct is often blurred by the heat of industrial action or internal grievances.
The legal question we must answer is whether dismissal is a proportionate sanction when an employee uses unfiltered slang or questions management’s integrity during a volatile period. To illustrate this, we look at the recent Labour Appeal Court decision in
Bakhresa SA (Pty) Ltd v Roshelle Jaipal & Others.
The Background Facts
The matter began during an unprotected strike in July 2020 at a milling plant in Durban. The employer obtained a court interdict to stop the strike and communicated this to staff via SMS and notices on workplace walls. The employee responded with two communications that led to her dismissal:
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An Email: She questioned the authenticity of the interdict, stating she would be “very surprised” if it was a legitimate court order and not one "issued by the employer".
- A WhatsApp: She sent a message to the HR Manager stating that management “don’t have the balls” to deal with employees directly regarding their safety.
The employer dismissed the employee for incompatibility (implying fraud regarding the court order) and disorderly behaviour (using abusive and untrue language). However, the CCMA and eventually the LAC determined that the dismissal was substantively unfair.
The Legal Analysis
The LAC emphasized that in any interpretation exercise, the text, context, and purpose of the language must be viewed unitarily.
The LAC held that:
- While the term "balls" can be offensive, in the context of a tense strike, it was used as slang for "toughen up". It was an expression of frustration rather than a malicious or literal insult.
- Raising questions about discrepancies in a court order, as the employee did, is a legitimate enquiry and does not automatically constitute a proven act of fraud or incompatibility.
- Crucially, the employer's own code did not categorize "abusive language" as an offense serious enough to warrant the "ultimate sanction" of dismissal.
A significant turn in this case was the employer’s attempt to block the employee’s reinstatement by claiming her position had become redundant. The LAC rejected this as an "afterthought machination". The Court found that while the "label" of her job may have changed, the procurement functions still existed and had merely been redistributed across other staff. The Court reminded us that reinstatement is the primary remedy unless an employer provides "compelling evidence" that it is impossible or futile.
Key Takeaways
So, is dismissal justified? Based on the Bakhresa ruling, the answer is no.
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"Colourful" or strong language used in the heat of a dispute rarely justifies dismissal if it does not cross into hate speech or incitement.
- If your own disciplinary code suggests a warning, you cannot jump to dismissal just because management feels offended.
- You cannot unilaterally declare a role redundant after a dismissal to avoid taking an employee back; functions, not just job titles, must have truly dissipated.
That brings us to the end of this week’s discussion.
Thank you for joining us.
I hope you have found our discussion informative.
If you have any questions or comments, we would love to hear from you – you can find us on social media, or email me at ross@masconsulting.co.za.
Until next time – good-bye.
