Can an employer be held liable for defamatory statements made about an employee? The High Court recently confirmed that it can but that an employer may rely on the standard defences to such a claim to escape liability.

In Ramridili v MTN SA Innovate Centre and another (case number 0591/2012: judgment delivered 3 June 2014) Judge Satchwell confirmed that statements made by a manager about an employee could be actionable where these statements were defamatory. The employee claimed that he was defamed when a manager made allegations about him in an email sent to various senior employees of the defendant company.

The employee lodged various grievances, raised complaints to top management of the company and referred a dispute to The Commission for Conciliation, Mediation and Arbitration (CCMA). He sent emails requesting disciplinary action to be taken against individuals who "… undermined Company policies." When emails were circulated within a portion of the management team regarding his allegations, a manager responded and stated, amongst others, that the employee "… has underlying psychological issues given the number of grievances and endless complaints both inside and outside of [the company]."

The High Court held that saying that the employee had 'underlying psychological issues' suggested that the employee was "… unable to control his choices or interactions with others because of the psyche which underpin his behaviour." Such a perception does not bode well for an employee in an environment where teamwork is valued and deviation from the norm not desirable. Management of the company may well be influenced by the manager's assessment of the employee. Judge Satchwell held that the words used were defamatory of the employee.

The judge stated further that, by effectively labelling the employee's uncomfortable behaviour as illness, it had an impact upon the recipients of the email. The manager the further told a meeting of selected senior managers that the employee had "… psychological tendencies towards paranoia." The judge rejected the defence proffered that the email was sent with the intention of assisting the employee to overcome what appeared to be psychological issues. On the facts, she held that the subsequent emails directed to procure counselling for the employee was aimed at the upcoming disciplinary enquiry (and not following on the defamatory email previously sent). The judge expressed some sympathy for the manager, though, in stating that she does not see any malice in his actions, only exasperation.

Turning to the common defences against a claim for defamation, the judge confirmed that the manager cannot claim that the defamatory statement was 'true and in the public interest' as he was not qualified to diagnose whether the employee was paranoid or had psychological issues. Turning to the alternative defence raised, she considered whether the statements were 'fair comment and in the public interest'.

For this defence to succeed, the defendant had to prove that the comment was fair based on the facts expressly stated. The facts need not be proven to be true, but must be 'substantially true'. The court considered the comments made to be fair comment as some of the facts stated by the manager in the email were either conceded by the employee or not in dispute.

In relation to the public interest leg of this defence, the court stated that public interest does not only refer to the interest of the wider society and statements or activities of public figures. The defendant is a large organisation with operations in South Africa, the rest of the continent, the Middle East and Europe with millions of customers. All stakeholders have an interest in the wellbeing of the organisation and need to be assured that their interactions with the company and its employees are safe. The court held that the human resources manager is entitled (and even required) to comment on the psychological wellbeing of an employee where this has been questioned by the executives.

The court thus dismissed the employee's claim and awarded costs against him.

Employers should take care to ensure that employees are not defamed during communication involving the employees. Care should be taken during disciplinary processes where adverse comments are often made about employees. Unless a manager is qualified to make assessments about an employee, feedback about employee behaviour should be crafted in such a manner that it is not defamatory or that the employer could rely on the defences of truth/fair comment and public interest.

Employers don’t enjoy special protection against claims of defamation. However, as this case again shows, succeeding with such a claim is often difficult in practice for disgruntled employees. The negligible amounts awarded in successful claims and risk of an adverse cost order in unsuccessful claims act as natural deterrents to potential litigants. By making managers aware of the risk of defamation and providing training on how to avoid the pitfalls, employers could safeguard themselves against the difficulties of defamation claims brought by employees.