Hating on Hate Speech

South Africans over the last few years have seen, heard and witnessed some pretty awful stuff. The hate-fueled vitriol spewing forth from some people has indeed been mind-boggling. Sadly, it has become evident that there remain an unfortunate number of racists in South Africa – across the colour spectrum. Not that any of this is news to any of us. Between our media and our social media, racists are being named-and-shamed with regular monotony. But racists should beware – it’s not just their good name that’s on the line. Even if the racist act isn’t deemed offensive enough to earn a jail sentence, their careers could well be on the line.

In a recent case a man published a racist post on his Facebook profile, threatening genocide against all white people. If such a suggestion wasn’t hateful enough, the situation was compounded by his profession: he was a police officer. His primary task was to protect all South Africans, regardless of colour.

When the police officer’s racist post came to his employer’s attention, the SAPS took decisive action by dismissing him. He objected to his dismissal. He based his opposition on the following submissions:

• His dismissal was unfair because his employer failed to complete the charge sheet in enough detail. They hadn’t detailed the date, time and place where the alleged misconduct occurred. The Court disagreed. It was found that the charge sheet contained sufficient detail to ensure that the employee understood the nature of the charges. A misconduct charge in labour law does not need to be as comprehensive as a criminal charge.
• His employer had not implemented a social media policy, and therefore he hadn’t breached any company policy. Again, his submission failed. And therein lies a caution for all employees. It was held that employees should exercise common sense by being cautious when commenting on social media, which is in the public domain. Regardless whether their employer has implemented a social media policy.
• The Facebook post should not have been admitted into evidence against him because it was hearsay. Again, his submission failed. It was held that hearsay evidence can be admitted if it’s in the interests of justice to do so.
• And finally, he attempted the age old “It wasn’t me” excuse. He claimed his Facebook profile had been hacked and some rogue had posted the comments. The court found this version to be improbable. He had made no attempt to distance himself from the post, report it to Facebook, provide proof of the hack, or investigate the circumstances behind it. On a balance of probabilities, the police officer was most likely the author of the comments.

The dismissal was therefore upheld.

The court found that dismissal can indeed be an appropriate punishment for hate speech. So, Racists beware: you may be one vitriolic post away from losing your job.

From an employment perspective, employers would do well to consider implementing policies and procedures that prohibit hate speech and other undesirable communications. And if you do encounter the unfortunate situation of dealing with a racist in your midst, seek expert advice and act swiftly. Together we can quash hate speech, one racist at a time.

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.