Zimbabwean wins unfair dismissal case in South Africa

A Zimbabwean bakery manager in South Africa has won a significant Labour Court victory after the court dismissed his employer's attempt to overturn a ruling that his dismissal over a biblical WhatsApp post was unfair.

Cloudious Gogo, who worked as a manager at Erarite (Pty) Ltd trading as Khayelitsha SuperSpar, was dismissed in July 2022 after posting a passage from the biblical book of Deuteronomy on a management WhatsApp group and on his personal WhatsApp status during a period of heightened xenophobic tensions in South Africa.

The scripture stated: "Foreigners who live in your land will gain more and more power while you gradually lose yours. They will have money to lend you, but you will have none to lend them. In the end, they will be your rulers."

The post coincided with the creation of a Facebook group accusing the supermarket of employing foreign nationals at the expense of South African citizens.

According to court papers, the group allegedly identified 23 foreign employees and called for protest action against the supermarket, prompting management to seek police assistance while officials from the Departments of Labour and Home Affairs requested documentation relating to employees.

During proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA), Gogo admitted publishing the biblical passage but argued that dismissal was an excessive sanction and that a final written warning would have been more appropriate.

The CCMA commissioner found that while Gogo had committed misconduct, the post did not amount to hate speech and dismissal was disproportionate.

Although Gogo did not seek reinstatement, the commissioner awarded him compensation equivalent to three months' salary.

His employer subsequently approached the Labour Court seeking to have the arbitration award reviewed and set aside.

Erarite argued that the commissioner had failed to appreciate the seriousness of xenophobia in South Africa and the operational risks allegedly created by Gogo's conduct.

However, Labour Court Judge Tapiwa Cecilia Gandidze dismissed the application, ruling that the CCMA commissioner had reached a decision that fell within the range of reasonable outcomes.

In her judgment, Judge Gandidze rejected the employer's argument that greater weight should have been given to management's decision to dismiss Gogo, relying on the Constitutional Court's landmark ruling in *Sidumo and Another v Rustenburg Platinum Mines Ltd*.

"The commissioner's sense of fairness is what must prevail and not the employer's view," the judgment stated.

The court concluded that the arbitration award was reasonable and declined to interfere with the CCMA's findings.

The review application was dismissed, with each party ordered to bear its own legal costs.

The ruling represents a significant victory for Gogo, bringing to an end a legal dispute that has spanned nearly four years and reaffirming the principle that dismissal must remain an appropriate and proportionate sanction even where employee misconduct has been established.