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Growing trend of employers silencing criticisms as three workers disciplined, one dismissed

(FXI/IFEX) - The following is a 19 November 2007 FXI press release:

FXI disturbed by recent violations of freedom of expression of workers

The Freedom of Expression Institute is disturbed by the growing number of violations of the freedom of expression of workers. Four cases have been brought to the FXI's attention of workers who are either being disciplined for utterances they have made, or who have already been dismissed.

These cases point to a growing trend where attempts are being made by employers to silence criticisms of their management practices, calling into question the commitment of employers to upholding the Constitutional rights of their employees.

The cases are as follows:

- Director of Performance Management in the City of Cape Town, Themba Jack, is being disciplined for serious misconduct, insubordination and bringing the City into disrepute, for writing a letter to the MEC for Local Government and Housing in November 2006. In the letter, Jack had complained about what he alleged to be the City's disregard for proper and fair labour processes. Jack is a member of the South African Municipal Workers' Union (SAMWU). What the City seems to be most aggrieved by is that Jack cast its management in a bad light with the MEC, by complaining about what the City termed an "internal matter". Jack's disciplinary hearing commences on Thursday 22 November.

- In another case involving a SAMWU member, Eastern Cape SAMWU Provincial Chairperson, David Toyis, has been suspended by the Nelson Mandela Bay municipality, pending a disciplinary hearing into misconduct. He is being charged with several offences relating to a meeting of workers he addressed in Port Elizabeth. One charge states that he is guilty of misconduct for merely supporting statements critical of the Municipality by organisations such as the South African Communist Party (SACP). Some of the statements he is accused of supporting include "power, power, down with the Municipality", and "we say if the local government does not satisfy the needs of the people it must go". In other statements, he accuses the City management of racism.

- In February 2007, the Metsimaholo municipality instituted disciplinary proceedings against municipal employee and Cosatu chairperson for the Free State, Patrick Seshea, for - amongst other things - criticising the Municipality in the media. He was dismissed in May 2007. Seshea's arbitration hearing is being conducted by the Local Government Bargaining Council. The disciplinary proceedings were instituted in terms of a Municipal Manager's instruction, issued in November 2002, and ordering employees to refrain from communicating with the media about the Municipality's affairs. This instruction does not seem to be reasonable and justifiable, and, in any event, if the Municipality intended to protect confidential information, there were less restrictive means to achieve the same ends than banning all contact with the media.

- A member of the General Industries Workers Union of South Africa (Giwusa), Bongani Ntuli, is being disciplined by his employer, Capacity Outsourcing, for distributing a pamphlet at a picket outside Johnnic Communications, which the company claims contains 'information that is derogatory and offensive to the good name of the company'. The company is a labour broker supplying labour services to Independent Newspapers and Johnnic Communications, and is accused in the pamphlet of engaging in exploitative employment practices.

The FXI is distressed by the fact that these employers do not seem to have taken into account that the Constitutional Court has stated that employees have a right to engage in speech that is critical of their employers. This principle was once again upheld last year, when the Commission for Conciliation, Mediation and Arbitration reinstated Superspar worker Vusi Sibeko (Khumalo), after he was dismissed for defaming the company's managers, and for bringing them into disrepute. His "crime" was that he criticised company employment practices in a socialist advocacy newspaper. Also, Eastern Cape doctor Costa Gazi was reinstated last year after a long legal battle with the Eastern Cape provincial health department, which dismissed him for statements critical of the Ministry of Health.

In spite of these positive precedents, employers continue to use apartheid-style tactics to silence their employees' critical voices, in a bid to protect their public reputations. These cases also come on the back of numerous clampdowns on freedom of expression in the public health sector. These developments strongly suggest a growing trend towards managerial authoritarianism, where employees are expected to surrender their Constitutional rights as part of their employment contract. What is also apparent in these cases is the sheer pettiness of many of the charges.

The above-mentioned employers also seem to be oblivious to the fact that political speech must receive the highest protection. Speech about working conditions all too often crosses into the terrain of political speech. The first three cases clearly involve political speech, as they deal with problems in local government service delivery. The fourth case involves criticism of the use of labour brokers and the practice of casualisation, which could also be considered political speech.

Speech about the working conditions of workers is of considerable public importance, and workers must not fear recrimination for speaking out. The alarmingly high rates of unemployment may lead to workers choosing to remain silent about perceived injustices in their workplaces out of fear of dismissal. It is especially important to protect the freedom of expression of casualised workers, as this sector is more vulnerable to exploitation than the formal sector.

As CCMA Commissioner Soewyba Flowers stated in her judgment on the Sibeko matter, "Historically, this country's democracy was born, among others, such as our schools, also in the workplace. It was the workers who fought discrimination, authoritarianism and oppression. They contributed much to the labour laws as we know them today. And for this, they used the workplace as a forum. It is the place where the culture of apartheid was crushed, and consequently many lost their lives or their livelihoods. It was the place where workers aspired towards democracy, although it was never granted to them. Why now, would the freedom of expression in the workplace, be denied after democracy may have been obtained?"

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