The term “political opinion” was defined by the Labour Appeal Court (LAC) in Cape Peninsula University of Technology v Mkhabela [2021] 42 ILJ 2384 (LAC) as “a broad category of attitudes that a person might hold on matters of concern to [them] concerning the state, government or society”.

Employers may have an interest and duty to create and maintain a harmonious and politically neutral workplace. In doing so, an employer may wish to prohibit and regulate certain conduct that could threaten this aim. As with many employment issues, the best approach is to regulate conduct in the workplace by implementing reasonable policies consistently that provide clarity on best practice and prohibited conduct. This includes adopting policies and guidelines for appropriate behaviour, dress code, communication and interaction.

However, an employer cannot generally restrict an employee’s entitlement to join a political party or participate in political activities outside of the workplace. In the recent judgment of SAMWU v Minister of Cooperative Governance and Traditional Affairs [2024] 2 BLLR 221 (LC) (SAMWU), the Labour Court found section 71B of the Local Government: Municipal Systems Act 32 of 2000 (Act) unconstitutional. Section 71B extended a prohibition of holding office in political parties for municipal managers and those reporting directly to them, to all municipal employees, regardless of their position or status.

The South African Local Government Association (SALGA) supported the prohibition by placing before the court investigations into political killings in the municipal sector and the Human Rights Commission’s recommendation of depoliticising municipalities. This was presented as justification for its attempt to prevent political patronage in the workplace. SALGA further argued that the prohibition would promote equality between municipal employees. The court found that there was no rational connection between the purpose of the prohibition (professionalising the municipal sector and improving service delivery) and the limitation of the constitutional right to form, join and participate in political parties.

In determining the reasonableness of an employer’s policy and potential sanctions for misconduct, the context is important. In National Union of Metalworkers of South Africa v Transnet SOC Ltd [2019] 2 BLLR 172 (LC) the Labour Court was confronted with a policy which prohibited employees from wearing political party clothing or other non-recognised union regalia during working hours. The Labour Court stated that the right to participate in the lawful activities of a union, as protected by sections 4 and 5 of the Labour Relations Act 66 of 1995, has been given a wide interpretation and includes a range of lawful activities such as the right to recruit and represent members. This includes the right to wear union T-shirts. The Labour Court qualified its finding by stating that the right to wear union T-shirts may be limited where this poses a threat to safety or sparks union rivalry, or for some other valid operational reason.

In the context of industrial action where some striking workers sang a struggle song that contained lyrics that could possibly be considered contextually offensive or racist, the Constitutional Court stated that while the singing of the song at the workplace was inappropriate and offensive in the circumstances, the sanction of dismissal did not automatically follow (Duncanmec (Pty) Limited v Gaylard N.O. and Others [2018] ZACC 29).

In a workplace context, where political partisanship or political statements are prohibited because they affect the integrity of the business or its reputation, arbitrators have generally not condoned these actions by employees where a link can be established between the misconduct, the employer’s policies and the negative impact of the misconduct on the employer’s workplace or business.

Conclusion

The LAC noted the harm that a politically charged environment can cause and noted that “the frequently highly charged racial or political atmosphere of the workplace can be extremely detrimental to working relationships and disruptive of the entire business operation” (Lebowa Platinum Mines Ltd v Hill [1998] 19 ILJ 1112 (LAC).

An employer is entitled to adopt workplace rules and policies which limit the rights to freedom of association, opinion, belief and expression in the interest of maintaining an apolitical and harmonious workplace and where political activity may negatively impact the integrity of its work. Rules against politicking in the workplace must be reasonable and limit these rights only insofar as is necessary.