Unless an entrepreneur has a vested interest in a specific political party, that entrepreneur, like any employer, has a duty to create and maintain a politically neutral work environment for all employees.
This does not mean that employees are prohibited from joining political parties or participating in political activities in their private time as this goes to the heart of freedom of association. While employees have the right to freedom of association, that right is not absolute and may be limited, provided that there is a rational basis that underpins this.
“Wearing political clothing does not only have the potential to cause tension in the workplace but can also impact cohesion and constructive interaction which should take place between employees amongst themselves and the employer. An employer is therefore well within its rights to take reasonable steps to mitigate this,” explains Fiona Leppan, a Director in Cliffe Dekker Hofmeyr’s Employment practice.
It is therefore important that entrepreneurs and other employers introduce a rule against employees wearing political insignias in the workplace where this is justifiable, and apply that rule consistently through all levels of management.
“This would alleviate the argument that management supports a particular political party or organisation. It will also assist to discourage claims of unfair treatment against the employer in future,” she stresses.
In a recent case (NUMSA obo Kwena Masha and PFG Building Glass), this matter came to the fore. In this case, an employee, who was also a shop steward, was disciplined and dismissed for taking a photograph at the workplace of him wearing a t-shirt of a certain political party, and thereafter posting that photograph on Facebook thereby associating the employer with his political aspirations. Upon his dismissal, the employee referred an unfair dismissal dispute to the National Bargaining Council for the Chemical Industry (NBCCI) and alleged, amongst other things, that the employer’s policy against wearing political insignia infringed his freedom of association.
“The employer argued that it had a rule against the wearing of political clothing in the workplace because it was not affiliated to any political party and did not want to create the impression that it was tolerant of any particular political party. It was common cause that the employee was aware of the policy against wearing political clothing in the workplace as this was communicated to him directly and was also placed on notice boards and was available on the employer’s intranet,” says Leppan.
In deciding whether the dismissal was substantively fair, the Commissioner found that the policy prohibiting the taking of photographs in the workplace was reasonable as it was intended to protect the employer’s trade secrets in the form of unique designs and equipment. The Commissioner found that at no time prior to being charged did the employee remove the contentious pictures on Facebook despite him being aware of the workplace rule. The photograph was in the public domain and accessible to the employer’s clients, which although indirectly, could have possible impact on the employer’s business in a form of decreased orders.
The Commissioner found that because the employee had also posted another picture on Facebook of him attending a political rally for the same political party and displaying a banner that the ruling party should fall, it was clear that this constituted participation in political activity. Such conduct could objectively have a negative impact on the employer’s reputation.
The Commissioner acknowledged that there is still a level of political intolerance in South Africa and stated that if such is not properly controlled in the workplace, it could lead to unnecessary tension. Further, the Commissioner found that given the position of influence the employee enjoyed as a shop steward, he should have known better and acted with caution. On this basis, the Commissioner found that the sanction of dismissal was appropriate also taking into account the seriousness of the misconduct.