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 single emoji in a work email could cost you your job?
It is a light-hearted question, but a serious one.
So much of our working life now unfolds in emails, instant messages and emojis —
quick, informal, and often sent in the heat of the moment.
Yet the courts are increasingly reminding us that these casual communications carry real legal weight,
and that the tone we adopt can be every bit as important as the substance of what we say.
The question we must answer is this:
can disrespectful electronic communication, particularly when combined with dishonesty,
justify the ultimate sanction of dismissal?
And, just as importantly, will a commissioner’s findings on those issues withstand the scrutiny of a review?
To answer that, we turn to the recent Labour Court decision in
Mpahlwa v Public Health and Social Development Sectoral Bargaining Council and Others.
The employee was a Central Processing Operator at a hospital.
Over time, the employer brought six charges of misconduct against him.
One was withdrawn, leaving five —
ranging from absence without permission and a failure to submit a medical certificate,
to leaving the workplace in defiance of a direct instruction.
But it was two of the charges, both concerning his emails, that lie at the heart of our discussion.
In the first, responding to a colleague, he remarked that he had replied — and I quote —
“but not with a fist emoji,” before adding, “Let’s pray they don’t hit you again.”
Now, that phrase might have seemed harmless in isolation.
But the colleague in question had genuinely been assaulted at work.
Read in that light, the remark took on an altogether more menacing character.
The colleague testified that the employee’s conduct had reduced him to tears,
and had ultimately driven him to seek a transfer to another hospital.
In a second email, the employee went further,
“warning” management to disregard what he described as “unlawful instructions from so-called nursing management.”
His disciplinary hearing was postponed no fewer than four times, largely on medical grounds.
After repeated warnings, and in the absence of any supporting medical evidence,
it eventually proceeded without him, and he was dismissed.
At arbitration, seeking to justify leaving the workplace,
the employee produced a written agreement that supposedly bore the signature of his supervisor.
The difficulty was that the supervisor testified she had neither signed nor drafted the document.
The commissioner concluded that he had attempted to mislead her by relying on a fabricated document,
and upheld the dismissal as both procedurally and substantively fair.
Dissatisfied, the employee took the award on review.
The Labour Court dismissed the review, and its reasoning offers three valuable lessons.
First, on the emails.
The Court accepted that grossly disrespectful communication — the kind that reduces a colleague to tears — is serious misconduct.
And it emphasised the importance of context.
A reference to being “hit” was menacing precisely because the recipient had, in fact, been assaulted.
Second, on the disputed document.
Where the authenticity of a document is challenged,
the onus rests squarely on the party relying upon it to prove that it is genuine —
ordinarily by calling the person who signed it.
Here, the employee produced no original, called no signatory,
and never put his version to the employer’s witnesses under cross-examination.
The commissioner was therefore fully entitled to reject the document as a fabrication.
Third, on his belated request to call a doctor to explain his absence.
The employee had been expressly invited, at the time,
either to provide an affidavit or to call his doctor — and he had declined.
He could not, after the fact, resurrect that evidence to argue that the hearing had been unfair.
Underlying all of this is the well-established test on review:
an award will only be set aside where it falls outside the range of decisions a reasonable decision-maker could have reached.
On these facts, the commissioner’s conclusions comfortably survived that scrutiny.
So, can a disrespectful email — emoji and all — justify dismissal?
On the facts of this case, the answer is a firm yes.
First, remember that how you communicate is itself conduct.
Emails, instant messages, and even an emoji can constitute misconduct
where they are disrespectful, demeaning or threatening.
Second, context is everything.
The same words may be innocuous in one setting and deeply intimidating in another,
depending on who receives them and why.
Third, if you intend to rely on a document, be prepared to prove it.
The burden rests on the party relying upon it, not on the party disputing it.
And fourth, an employer may proceed in an employee’s absence —
provided fair warning is given and a genuine opportunity to be heard is afforded.
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.
