Social Media Misconduct in South Africa.

The increasing use of social media and messaging platforms in the workplace has created difficult questions concerning the extent to which employees may be disciplined for online conduct. In South African labour law, these questions become particularly complex where an employee’s communication occurs outside the conventional workplace but has a connection to the employment relationship and the potential to affect workplace relations, safety, or operational stability.

The Labour Court’s judgment in Erarite (Pty) Ltd t/a Khayelitsha Superspar v Commission for Conciliation, Mediation and Arbitration and Others (C424/2022) [2026] ZALCCT 53 (23 March 2026) provides an important illustration of these principles. The Court considered whether the dismissal of an employee for social media misconduct — specifically, posting a provocative biblical passage on WhatsApp — was substantively fair in circumstances where the workplace was experiencing heightened xenophobic tensions and employees had specifically been instructed not to exacerbate the situation.

This case is significant for any employer or employee dealing with social media misconduct in the workplace in South Africa. It demonstrates that the establishment of misconduct does not, by itself, determine whether dismissal is an appropriate sanction. The seriousness of the conduct must be assessed within its factual context, while the sanction must remain proportionate to the misconduct and the circumstances of the particular employee.

Factual Background: Workplace Tensions and Social Media Misconduct

The employee, Mr Cloudious Gogo, was a Zimbabwean national employed by Erarite (Pty) Ltd t/a Khayelitsha SuperSpar as a Bakery Manager. The dispute arose against a background of considerable tension concerning the employment of foreign nationals in South Africa.

A Facebook campaign had identified 23 foreign national employees at the store and called for protest action intended to “shut down” the store. The employer responded by:

• Engaging with its foreign national employees and specifically requesting that they refrain from conduct that could exacerbate the situation while the matter was being investigated.
• Seeking assistance from the South African Police Service in anticipation of the proposed protest.
• Engaging with the Departments of Employment and Labour and Home Affairs, which became involved in scrutinising the employer’s records concerning foreign national employees.

Employees associated with the Facebook campaign were subjected to disciplinary action, with some being dismissed and others transferred.

The WhatsApp Post

It was against this background that Gogo posted a passage from the Book of Deuteronomy on his WhatsApp status. The passage referred to foreigners gaining power over local residents and becoming their rulers. The post appeared both on his personal WhatsApp status and on the management WhatsApp group.

Gogo maintained that the posting on the management group had been accidental and attributed it to problems with his cellphone. He apologised for that posting, which was removed shortly thereafter. He nevertheless defended the posting on his personal WhatsApp status.

Gogo was subsequently charged with misconduct, found guilty at a disciplinary hearing, and dismissed. He referred an unfair dismissal dispute to the CCMA, challenging the substantive fairness of his dismissal.

The CCMA Arbitration: Misconduct vs Proportionate Sanction

At CCMA arbitration, Gogo admitted that his conduct was inappropriate but argued that dismissal was disproportionate and that a final written warning would have been sufficient.

The commissioner rejected Gogo’s explanation that the management-group post had resulted from a telephone malfunction. The commissioner concluded that the conduct was deliberate and constituted a serious error of judgment.

Importantly, however, the commissioner distinguished Gogo’s conduct from the Facebook campaign. The commissioner accepted that the WhatsApp post was provocative and inappropriate, particularly given the existing tensions and the instruction to employees not to exacerbate the situation. Nevertheless, the commissioner found that:

• The post did not amount to hate speech.
• The post did not threaten or incite violence against local residents.

The commissioner therefore considered the misconduct serious but concluded that dismissal was too severe a sanction. A final written warning was considered appropriate. As Gogo did not seek reinstatement, the commissioner awarded compensation equivalent to three months’ remuneration.

The Employer’s Review Application to the Labour Court

Erarite approached the Labour Court seeking to review and set aside the arbitration award in terms of section 145 of the Labour Relations Act 66 of 1995 (“LRA”).

The employer contended that:

• The commissioner had failed to appreciate the seriousness of xenophobia and the broader social context in which the misconduct occurred.
• Insufficient consideration had been given to the impact of the employee’s conduct on workplace safety, operational stability, and the employment relationship.
• Gogo’s managerial position and the specific instruction given to foreign national employees warranted dismissal.

The Labour Court was therefore required to determine whether the commissioner’s conclusion that dismissal was unfair fell outside the range of decisions that a reasonable decision-maker could reach — the standard established in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007 (28) ILJ 2405 (CC).

The Labour Court’s Decision: Review Dismissed

The Labour Court dismissed the review application. The Court found that:

• The commissioner had properly understood the nature of the misconduct and had considered the surrounding circumstances.
• There was no basis for concluding that the commissioner had ignored material evidence or relied on irrelevant considerations.
• The commissioner had expressly recognised the seriousness of Gogo’s conduct — the employee had deliberately posted the material and had exercised poor judgment in circumstances where he had been asked not to exacerbate existing tensions.
• The fact that the commissioner nevertheless concluded that dismissal was disproportionate did not render the award unreasonable.

The Court accepted that the commissioner was entitled to distinguish Gogo’s conduct from the Facebook campaign. While both incidents arose against the same broader background of xenophobic tension, the commissioner was entitled to consider the nature and consequences of the respective conduct. This distinction was central to the Court’s reasoning.

Misconduct Does Not Automatically Justify Dismissal in South Africa

A central lesson from Erarite v CCMA is the distinction between establishing misconduct and determining an appropriate sanction under South African labour law.

The Court did not find that Gogo’s conduct was acceptable. On the contrary, the misconduct was deliberate and inappropriate. The employee had been specifically instructed not to exacerbate tensions, yet proceeded to publish material which could reasonably be regarded as provocative in the circumstances.

However, once misconduct has been established, a separate enquiry arises concerning sanction. The question is whether dismissal is fair in all the circumstances. This principle is consistent with the Constitutional Court’s approach in Sidumo, which requires that the commissioner independently determine whether the dismissal is fair — the employer’s decision to dismiss is the starting point, not the end point.

Accordingly, the fact that an employer genuinely considers dismissal to be warranted does not determine the outcome of an unfair dismissal dispute. In Erarite, the commissioner was entitled to conclude that corrective discipline remained appropriate notwithstanding the seriousness of the misconduct.

What Determines a Fair Sanction for Social Media Misconduct?

When determining whether dismissal is a fair sanction for workplace misconduct involving social media in South Africa, the following factors are relevant:

• The nature and seriousness of the conduct — was it a single post or a sustained campaign?
• The employee’s role and position — does the employee hold a managerial or leadership role?
• The context in which the conduct occurred — was there existing tension or sensitivity in the workplace?
• Whether the conduct was deliberate or inadvertent — did the employee intend to cause harm?
• The impact on workplace relations — did the post actually disrupt operations or relationships?
• Whether the conduct constituted hate speech or incitement — or was it merely provocative or insensitive?
• The employee’s disciplinary record — is this a first offence or part of a pattern?
• Whether a lesser sanction would achieve the desired corrective outcome — would a final written warning suffice?
• The employer’s policies — is there a clear social media policy that the employee was aware of?

Context and Proportionality in Social Media Misconduct Cases

The Erarite judgment demonstrates that social media misconduct must be assessed within its factual context.

The Court did not disregard the volatile circumstances surrounding the employee’s conduct. The xenophobic campaign, the identification of foreign national employees, the anticipated protest action, the involvement of the police and government departments, and the employer’s instruction to employees were all relevant.

Crucially, the same circumstances that aggravated Gogo’s misconduct also had to be considered when assessing whether dismissal was proportionate. The commissioner accepted that the post was provocative. The issue was whether the nature and effect of the post justified the ultimate sanction of dismissal.

The commissioner distinguished between provocative expression and conduct involving threats or incitement to violence. The Labour Court held that this distinction fell within the range of reasonable conclusions available to the commissioner.

The case therefore illustrates that the existence of a highly sensitive workplace environment does not automatically convert inappropriate expression into dismissible misconduct. Rather, the circumstances must be evaluated as a whole.

The Limited Scope of Labour Court Review Proceedings

The judgment further highlights an important principle for employers: review proceedings are not appeals.

Under section 145 of the LRA, the Labour Court does not reconsider the merits of an arbitration award from scratch. The Court asks whether the commissioner’s decision was one that a reasonable decision-maker could reach. An employer’s disagreement with a commissioner’s assessment of sanction will not, without more, justify judicial intervention.

This means that employers must present their complete case during arbitration — including all evidence relevant to sanction — rather than attempting to reformulate the misconduct or the reasoning on review. By the time the matter reaches the Labour Court, it is generally too late to introduce new grounds or arguments that should have been raised at arbitration.

Practical Lessons for Employers: Social Media Policies and Disciplinary Action

For employers navigating social media misconduct in the workplace in South Africa, the following practical lessons emerge from Erarite:

• Have a clear social media policy that sets out what constitutes unacceptable conduct and the potential consequences. Employees should be aware of the policy and acknowledge it.
• Assess each case on its own facts — context matters. The same post may warrant different sanctions depending on the workplace environment, the employee’s role, and the surrounding circumstances.
• Distinguish between misconduct and appropriate sanction — establishing that an employee misbehaved does not automatically justify dismissal.
• Consider progressive discipline — a final written warning may be more appropriate than dismissal for a first offence, even if the conduct is serious.
• Present your full case at arbitration — do not assume you can fix gaps on review. The CCMA or Labour Court will assess the case as it was presented.
• Document everything — instructions given to employees, the context of the misconduct, the impact on the workplace, and the reasoning behind the sanction chosen.
• Seek legal advice early — consulting a labour law attorney before initiating disciplinary action can help ensure the process is fair, proportionate, and legally defensible.

Conclusion: Context, Proportionality, and Fair Process

Erarite (Pty) Ltd t/a Khayelitsha Superspar v CCMA and Others provides a useful illustration of the difficulties employers face when dealing with social media misconduct in a highly sensitive workplace environment in South Africa.

The judgment does not condone the employee’s conduct. The Labour Court accepted that his conduct was deliberate, inappropriate, and constituted a serious error of judgment. The Court nevertheless confirmed that the commissioner’s conclusion that dismissal was too severe was one that a reasonable decision-maker could reach.

The judgment reinforces three important principles of South African labour law:

1. The establishment of misconduct does not automatically determine the appropriate sanction. The fairness of dismissal must be assessed separately.
2. Context and proportionality remain central to disciplinary decisions. The circumstances surrounding an employee’s conduct, its nature, and its actual consequences must all be considered before dismissal is imposed.
3. Review proceedings are not appeals. An employer’s disagreement with a commissioner’s assessment of sanction will not, without more, justify judicial intervention.

For employers, the practical lesson is that social media misconduct should be addressed through a structured and evidence-based disciplinary process. Clear policies, properly formulated charges, a complete evidentiary record, and a proportionate approach to sanction will remain critical to ensuring that disciplinary action survives scrutiny under the LRA.

In an increasingly connected workplace, the question is therefore not merely whether an employee’s online conduct was inappropriate. The more difficult and legally significant question is whether, having regard to all the circumstances, dismissal was a fair response to that misconduct.

For personalised advice on social media misconduct, employee dismissal, CCMA matters, and labour law in South Africa, consult an attorney at SchoemanLaw Inc. Our experienced employment law team will help you navigate disciplinary processes, CCMA arbitration, and Labour Court reviews with confidence.