Ricochet News

EXPLAINED: Is racism in the workplace always a dismissible offence?

By Wouter Botes - Mar 25, 2019
EXPLAINED: Is racism in the workplace always a dismissible offence?

Port Elizabeth - The concept of racism in South Africa demands a particularly high level of interest and to no lesser extent, debate.

It is commonly known that although significant strides have been made in battling the injustices of the past, racism in South Africa has not been eradicated in its entirety, as is evident within the recurring incidents thereof in the workplace.

It comes as no surprise that the CCMA, Bargaining Councils and the Courts have taken an extremely firm stance on the issue of racism in the workplace. It has been generally accepted that a perpetrator of racism in the workplace can be “guaranteed” of a dismissal once found guilty and due process has prevailed.

The comments made by the Courts in handing down judgments are particularly descriptive of this notion.

Judge Raymond Zondo, , had the following comments in the case of Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others:

"Within the context of labour and employment disputes this Court and the Labour Court will deal with acts of racism very firmly. This will show not only this Court’s and the Labour Court’s absolute rejection of racism but it will also show our revulsion at acts of racism in general and acts of racism in the workplace particularly."

Similarly, in the case of SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others (2017) 38 ILJ 97 (CC), the following was held:

“The need to make a decisive break from the ills of the past, that non-racialism, human dignity and freedoms (which include freedom of expression without any trace of hate speech) are values foundational to our constitutional democracy. The healing of the divisions of the past, the national unity and reconciliation that need to be built and fostered respectively, are likewise intended to entrench peaceful coexistence, respect and the right to dignity of all our people.”  

The above extracts confirm explicitly that racism in the workplace is not only viewed as conduct that is repulsive, but that the eradication thereof is a moral imperative. This view is further bolstered by the Constitutional Court, in the case of Rustenburg Platinum Mine v SA Equity Workers Association on behalf of Bester & others (2018) 39 ILJ 1503 (CC), where Mr Bester uttered the phrase “remove that black man’s vehicle”, after being disgruntled by a contractor parking in a particular parking bay on site.

The Constitutional Court found that the phrase uttered by Bester was in fact racist, by concluding that the objective test is to determine whether a reasonable and informed person would consider the language to be offensive, and that the language was “racially loaded.”

'It is possible to face dismissal for racism in the workplace'

The Court further stated that Bester’s dismissal should be upheld, based on the ideology that racism cannot be tolerated and that employees have a duty not to undermine harmonious working relationships. In addition to this, the Court mentioned that racism has the potential to tarnish the employer’s reputation and jeopardise the employer’s business interests to an equal extent.

It is noteworthy that Bester had no remorse for the conduct that he had committed, and that the Court considered this fact in upholding the dismissal.

It is thus clear from the above, that a perpetrator of racism is not likely to be absolved from dismissal, irrespective of the level of mitigation present.

Notwithstanding the judgment in the Rustenburg Platinum Mine-case, a more recent ruling by the Constitutional Court has resulted in a considerable level of perplexity for employers and Labour Law practitioners alike.

The case of Duncanmec (Pty) Limited v Gaylard N.O. and Others [2018] ZACC 29 has raised questions for its rather “unexpected” judgment.

In the Duncanmec-case, a group of employees participated in unprotected industrial action, albeit short lived. In doing so, the employees sang a song, the lyrics of which translated into “Climb on top of the roof and tell them that my mother is rejoicing when we hit/hurt the boer.”

The Constitutional Court found that the employees indeed made themselves guilty of racially offensive conduct, but that certain factors were nevertheless to be considered, namely:

1)      There is no principle in law that requires dismissal to follow automatically when racism is perpetrated.

2)      The employees who perpetrated the conduct had unblemished disciplinary records.

3)      The industrial action that the employees partook in was peaceful and short-lived.

The Duncanmec-judgment and the Rustenburg Platinum Mine-judgment are very similar in nature, at least in regards to the fact that (1) both events were rather peaceful and (2) the discourse amounted to racist conduct. Why would the outcomes be so vastly disparate?

It is patently clear that the Constitutional Court sought to temper justice with mercy in the Duncanmec-case, and that even after the seriousness and revulsion of racism had been properly ventilated in prior judgments, the parity principle (consistency) is still very much a value-laden consideration in determining whether a perpetrator of racism should be dismissed. This means that each case should still be judged on its own merits, even in instances of misconduct as grim as racism.

In applying one’s mind as to whether or not a perpetrator of racism must be dismissed or not, the Constitutional Court made the following abundantly clear:

1)      The test as to whether the conduct was actually racist is objective, and must be determined in such a way, having regard to reasonability and the subjective perception of the victim of the conduct.

2)      The events surrounding the conduct must be assessed, was the racism paired with violent or peaceful conduct and, what is the degree of racism perpetrated?

3)      The disciplinary record of the perpetrator must be considered.

4)      Consideration must be given to whether or not the perpetrator is remorseful about his or her actions.

It would seem that there are degrees of racism and that historical context plays an important role when deciding on dismissal or not.

Follow more RNEWS articles, subscribe to our YouTube channel and for breaking news LIKE us on Facebook. For news on the Western Cape click here.