Mr X was dismissed by his employer, a call centre, for serious disrespect and failing to observe company rules. The charges arose from comments which Mr X posted on the intranet regarding the way management treated employees. Mr X's comments included that he felt that employees were "treated like a sheep waiting to be slaughtered for a certain ceremony, when talking about respect what is it? What do you know about respect…."

The comments were posted onto the intranet by Mr X in response to an invitation by the employer in terms of which employees were asked their views regarding the values of the company. On confronting Mr X, he did not show remorse for what he had done and indicated that what was on the intranet was his opinion. He contended that he posted his comments in response to the company's request to express a view on mutual respect. Mr X stated he did no know that he was not supposed to post negative comments.

Mr X was dismissed and he referred his dispute to the CCMA. The commissioner accepted that Mr X posted the message in response to a request by his employer to provide views on mutual respect and that he was aware that the message would be seen by his colleagues and management. The commissioner held that employers and employees have a duty of showing respect to each other and that the effect of the intranet message was that Mr X was "throwing the gauntlet dow to management". The commissioner held that Mr X should have been aware that he should not post anything inflammatory on the intranet and confirmed Mr X's dismissal.

Mr X made application to the Labour Court to review the award. It was argued that by inviting employees to post their views on the intranet, the employer set in motion the process which led to Mr X's views being posted on the intranet. It was argued that the invitation was "ill conceived" in that the "risk associated with such invitation was not considered".

The court held that the invitation did not prescribe the format or content of the response nor was any warning given to employees that negative comments may rsult in disciplinary action. The views expressed by Mr X were considered by the court to be "descriptive and based on his perception and the situational experience he seems to have had with management".

The court was of the view that the commissioner had not applied his mind to the totality of the facts and on this basis the finding of dismissal was not an appropriate sanction. The award was reviewed and set aside and Mr X was reinstated without loss of benefits.

The moral of this story is that employers cannot complain when they request employees to make comments about the or their management style and the comments prove to be negative.

Surveys of this nature shoud be carefully managed to avoid embarrassment.

Michael Maeso, Partner & Head of Employment & Pension Law Department

Contact: 031 575 7207 and maeso@wylie.co.za