Disclosure: Sam Mkokeli is a regular contributor to Daily Maverick.

Journalist Sam Mkokeli is challenging Bloomberg over alleged unfair labour practice after he was disciplined on the grounds that he contravened the company’s social media policy — “misconduct” for which he was dismissed.

Mkokeli has taken his case to the Commission for Conciliation, Mediation and Arbitration (CCMA), challenging two written warnings in “quick succession” that he received over the month of December 2018. He was subsequently dismissed as senior reporter and chief reporter for Africa on 1 March 2019.

Proceedings, before arbitrator Larry Shear, took place at the Johannesburg CCMA over two days last week. A ruling on the disciplinary warnings is expected.

Mkokeli is arguing for the “unfair” disciplinary warnings to be set aside. His dismissal has been referred to the Labour Court where the journalist will argue for “unfair dismissal and unfair labour practices”.

Mkokeli is arguing that he was victimised by his employer after he had complained and been vocal about the culture of the company and what he perceives to be Bloomberg’s “underlying culture of racism” and “lily-white management”.

Bloomberg has denied these claims, arguing that he was disciplined for contravening the company’s social media policy.

Mkokeli, a seasoned and top-rated journalist who joined Bloomberg in mid-2016, says he was also asked to stop criticising politicians and to cease from his public activism within the South African National Editors Forum, of which he has been a prominent voice as media freedom committee chairperson.

When the arbitration hearing began on Wednesday, this reporter was barred from sitting in on the grounds that CCMA processes are usually closed to the media. The following day, proceedings were open to the media after an application from the SA National Editors Forum.

Mkokeli’s disciplinary process began on 3 December 2018, when Bloomberg served him with a letter of “concerns” with “issues that have recently arisen” regarding his conduct as senior reporter.

His alleged wrongdoing included a “lack of adherence to Bloomberg’s social media policy” and “continued failure to provide your managers with written agenda and inform them of your whereabouts”.

According to Bloomberg’s written submission on the first day, Annexure A, the media company noted multiple tweets from Mkokeli, beginning with a post in November 2018, of “pictures depicting Stella Ndabeni-Abrahams with [a] text that clearly supports speculation that Ndabeni-Abrahams will become the next Telecommunications Minister”.

Mkokeli had tweeted, “Nayi le walk” (There’s that walk) and “Ixesha lisondele” (Rise, it’s time) with the same picture of Ndabeni-Abrahams respectively on 22 November 2018. An article about Ndabeni-Abrahams’ appointment was later posted on Bloomberg’s website that afternoon.

In the letter of concern, Mkokeli was reminded that he was in breach of the company’s social media policy and that he had been told about his conduct before.

On 1 August 2018, Rosalind Mathieson, Bloomberg executive editor for international government, wrote an email to remind Mkokeli that as Bloomberg journalists, “we must avoid using any public forum, including social media, to express personal opinion — about politics or politicians, or anything else we write about, in a way that would affect our ability to cover news in an impartial manner”.

Mkokeli had previously engaged in a “conversation” on Twitter “about the president’s (Ramaphosa’s) appearance on the state broadcaster, in effect for party purposes”.

He was told that “the issue” is that people could read the tweets “as you making criticisms that could affect people’s perceptions that we are covering news in an impartial manner”, and that it was best he “refrain from that sort of commentary on social media”.

The letter of concern said Mkokeli’s subsequent actions of posting about Ndabeni-Abrahams demonstrated that he “did not follow” the “instructions” from Mathieson’s previous email.

After a day of submissions by Bloomberg on Wednesday, Mkokeli and his attorney Clifford Levin had the opportunity to cross-examine the news agency’s HR partner, Gabriel Phillips, who had attended Mkokeli’s internal disciplinary hearings.

Levin argued at the arbitration on Thursday that Mkokeli had been posting “opinionated political” tweets as far back as March 2017 when Mkokeli had just begun working for Bloomberg.

He argued that there was nothing “sinister” about the tweets and that Bloomberg was simply “looking for a reason to get rid of” Mkokeli.

Levin also provided the arbitrator with a submission in Annexure B of multiple examples of Mkokeli’s previous tweets from November 2017. The tweets included a photo of Mkokeli with Ramaphosa, titled “a happy pair”.

In another post, Mkokeli retweeted a link to a news story by IOL titled: DA members to lose membership for supporting De Lille.

He titled the retweet, “On Tyranny and Liberty: DA to axe members that supported De Lille outside Cape High Court on Friday, according to IOL”. He added, “Oxymoronic?” at the end of the retweet.

Levin argued to the arbitrator that if these actions were indeed “misconduct”, the company had been well aware of this and had not immediately acted on them.

Three performance evaluation reports from 2016 and 2017, based on the metrics of Bloomberg’s cultural values, all describe Mkokeli as having “a fantastic start to his career at Bloomberg”, racking up to “30 exclusives” within his first six months.

His reporting was described as essential to “lifting government coverage to the top of our game” and acted “as the point man on many of our best stories”, especially “the coverage of the ANC conference in December (2017)”.

“Since [Mkokeli] joined Bloomberg he’s fit pretty seamlessly into the government team”, says Bloomberg’s 2017 year-end performance evaluation of Mkokeli.

They also remarked that “it’s going to be tough to improve from last year, and that speaks to [Mkokeli’s] high-quality performance”.

According to Mkokeli, Bloomberg has a high turnover of young black reporters who are gently pushed out after struggling to fit into the company culture. He says he had offered to mentor young black reporters as he felt they were all left to figure things out for themselves.

Phillips explained to the arbitrator that although Bloomberg News “appreciates” Mkokeli’s divergent views on the matter, “it is not the company’s view” that he was being reprimanded for the reasons he raised.

Bloomberg submitted multiple reports of internal investigations that had been conducted. All reports found no evidence to support Mkokeli’s claims, based on the testimony of senior Bloomberg staff he had implicated. It concluded that the matter had been settled.

Phillips argued that the real matter lay in the company’s objections to Mkokeli’s tweets. She said they were “open to interpretation” and that was “not something we want from our journalists”.

When Levin asked Phillips if this “misconduct” included his criticism of Ramaphosa, Phillips replied that Mkokeli “should not be criticising the president in any way”.

According to “Bloomberg’s Way”, the company’s policy that outlines its social media rules for employees, journalists are not allowed to use social networks to express a political opinion or to advocate on behalf of a particular issue or agenda.

It says “posts should never express bias based on race, colour, sex, religion, national origin, ancestry, age, marital status, sexual orientation, gender identity, veteran status, disability, or any other classification protected by law in your region”.

The policy says “reporters and editors cannot use social media to express opinions related in any way to their professional assignment or beat”.

Because of his tweets, Bloomberg argued at the CCMA that Mkokeli had not adhered to its social media policy. Mkokeli was further chastised for allegedly failing to submit “daily agendas” for “travel plans” for the stories he had been working on and “their expected date of publication”. He was required to do so “every morning by 10 am”.

Bloomberg said that on two separate occasions, Mkokeli’s team leader Karl Maier and managing editor Antony Sguazzin had explicitly asked him to “provide these agendas”, which Mkokeli had “repeatedly failed to” do.

Mkokeli was given a written warning on 14 December 2018. He received a final warning on 24 December 2018 after posting the words “Thixo ka Fransman!” on the 10 December, over a link to an article titled “ANC’s Pule Mabe accused of sexual harassment by his PA”.

According to Phillips, in the “notice to attend a disciplinary enquiry” sent to Mkokeli, the tweet was “clearly is a reference to Marius Fransman, the former head of the ANC’s Western Cape branch, who has been accused of sexual harassment”.

She said that therefore, this was “clearly expressing a subjective opinion and/or judgment regarding the government official in question”.

Mkokeli also challenged allegations that he failed to inform managers of his whereabouts. Mkokeli said in an extended email to Heather Harris, Bloomberg News’s London-based executive editor, his “security is compromised” because of the “big stories” that he chases.

He referred to the company’ s inability to “handle basic source protection” as a reason he could not tell them all the time where he would be.  According to Mkokeli, his movements were designed for his “family’s safety”. DM