Is freedom of speech for the lower ranks too?

Pinky Khoabane: Do employees have a right to air their personal views in their personal capacity on matters of public interest? That was the big question this week as the princess of President Jacob Zuma's cabinet tightened the screws on her legal adviser, Paul Ngobeni, in a saga that doesn't seem to be coming to an end any time soon.

Minister of Defence and Military Veterans Lindiwe Sisulu suspended Ngobeni this week, bringing under sharp scrutiny the debate about an employee's right to free speech.

The question here is whether the minister violated Ngobeni's right to free speech when she suspended him for penning an open letter - in his personal capacity - in which he lambasted Minister of Planning Trevor Manuel or whether Ngobeni, as a senior official in the ministry, was in breach of his contract and, in particular, the duty of trust to his employer.

The suspension follows the war of words that ensued after the release of government spokesman Jimmy Manyi's comments about an over-concentration of coloureds in the Western Cape.

Manuel retaliated with an open letter in which he described Manyi as a racist in the mould of apartheid's architect, HF Verwoerd.

Ngobeni hit back with his own open letter in support of Manyi, in which he accused the minister of, among other things, pursuing Manyi "in gangster-like fashion" with a view to getting him fired.

Lest we get sidetracked and start debating the content of the letters, this discussion centres on the right of an employee - in this case Ngobeni - to speak in public and in his personal capacity without censure by his employer.

On the one hand, it may be argued that Ngobeni was speaking in his personal capacity and his remarks were not directed at his boss or his employer - the government - and that, instead, he was responding to an open letter which was written by a minister who was also writing in his personal capacity.

In effect, these two men were writing in their capacity as ordinary citizens responding to a matter in the public domain.

However, as one labour lawyer explained, conduct away from the workplace may be taken into account if it affects the employment relationship.

And it is clear, therefore, that within this context, Ngobeni's personal views of Manuel would have had a definite impact on the relationship between the minister and her colleague.

Let's face it, both men did resort somewhat to gutter language in their attacks on each other, which will surely negatively affect the relationships of all concerned.

Imagine a meeting that had to be attended by Sisulu, Manuel, Ngobeni and Manyi.

If the planning minister thinks so little of Manyi as to equate him with the architect of apartheid, while Ngobeni questions the educational background and thinking abilities of the minister, it stands to reason that this relationship is probably becoming untenable.

In his open letter, Ngobeni stopped short of calling Manuel uneducated, but held that he lacked the ability to begin to understand the issues that the "highly educated Manyi was expounding".

Ngobeni can't hold this minister in high regard.

Even as Sisulu distanced herself and the ministry from Ngobeni's remarks, and her legal adviser apologised to her for the embarrassment his letter might have caused Zuma, he did not retract his comments about Manuel.

Princess Sisulu has made her decision. She will not tolerate the tension that has arisen out of these open letters.

But why has there been no similar response from the Presidency to Manuel's initial letter?

How will Manuel and Manyi work together after the former's comments?

Could it be that Ngobeni lambasted someone senior to himself, while Manuel's tirade was directed at a subordinate?

Whatever the reason for the deafening silence by the Presidency, suffice it to say that Manyi will not be sacked. There seems to be a double standard in dealing with this matter and, at worst, a suggestion that the rights to free speech of civil servants in ministerial positions are protected, while those of their colleagues in lower ranks are not.

Whatever the future holds for Ngobeni - this will be decided during his 30 days of suspension, when he is supposed to give reasons why he should not be fired - the case is a reminder to all of us that our right to free speech is not absolute. It is not only subject to limitations such as hate speech and pornography, but it is highly restricted in the workplace - more so in the private than in the public sector.

Employees who have a tendency to speak ill of their employers on social media networks, beware: there will be dire consequences if your utterances are discovered - irrespective of whether they were made during or outside working hours, with or without your employer's tools.