Black, white and different shades of grey

As will be shown, this is a complex and sensitive issue that does not necessarily always result in dismissal. This article aims to provide a summary of the latest approach of the courts. The article will achieve its aim by discussing a series of recent Constitutional Court (CC) judgments on this topic as follows –

Duncanmec judgment

One of the opening remarks in the judgment is that "racism and racially offensive behaviour are antithetical to our constitutional order".

In this matter, nine employees were dismissed for racially offensive conduct. During strike action, these employees danced and sang struggle songs in isiZulu. The lyrics of the songs translated to "climb on top of the roof and tell them that my mother is rejoicing when we hit the boer".

The representative trade union argued that the song was an old struggle song used to demonstrate defiance during a strike. It was used to band workers together and it was not used as a form of racial hatred.

The employer viewed the singing of this song (particularly the use of the word "boer") as constituting hate speech and racism at the workplace. This was, in the employer's mind, worthy of dismissal.

The employees referred an unfair dismissal dispute to the CCMA. The matter proceeded to arbitration and the arbitrator agreed that the employees were guilty of misconduct. However, the arbitrator changed the sanction to a final written warning.

The court examined whether the employees conduct (in signing the song) amounted to racism. The court found that the parties in this matter did not dispute the finding of the arbitrator on this question. The arbitrator found that the song did not contain racist terms. However, the arbitrator held that the song was inappropriate and had the potential to be offensive and cause hurt. The CC therefore accepted that the employees in question were guilty of racially offensive conduct.

The court then went on to consider the reasonableness of the arbitrator's award. The court held that the arbitration award was reasonable. In this matter, a distinction was drawn between the singing of a struggle song (which did not contain any racist terms) by a group of employees (during strike action) and the use of an overtly racist term by an employee. These are distinct scenarios and the context (surrounding circumstances) of these incidents must be closely considered.

Importantly, the court stated that even if the song contained racist terms, this did not automatically mean that dismissal would be an appropriate sanction. Arbitrators and courts are required to deal with racism in the workplace firmly but there is no principle in our law which states that dismissal is automatically the appropriate sanction.

The arbitration award was upheld and thus the employees were reinstated into employment and provided with final written warnings for their conduct.

Bester judgment

In this matter, a white employee referred to a black employee as a "swart man". The white employee was dismissed for misconduct as the employer viewed the use of the term as constituting racism.

The matter proceeded from the CCMA all the way to the CC.

At Labour Appeal Court level, the court held that phrases (in general) are presumptively neutral. The CC disagreed with this and found that such a default approach ignores the legacy of apartheid and racial segregation in South Africa. This legacy has resulted in a racially-charged atmosphere in society which must be taken into account when dealing with racism in the workplace.

The correct test to use is whether a reasonable, objective and informed person would, on the facts of the matter, perceive the words "swart man" to be racist and discriminatory.

After considering the circumstances of this case, the court found that the use of this term did constitute racism in the workplace. The dismissal of the employee in question was upheld.

It is submitted that the Bester judgment represents the first instance considered by the CC where a more "subtle" term was found to be racist.

SARS judgment

In this matter, a white employee called a black employee the "k-word". The white employee also insinuated that African people are inherently foolish and incapable of providing any form of leadership that is worth submitting to.

The employer dismissed the employee who challenged the dismissal at the CCMA. The arbitrator found that the dismissal was unfair and reinstated the employee. The employer challenged this decision in court. The matter eventually proceeded to the CC for a final ruling. Before dealing with the merits of the matter, the court considered the history of the k-word and its impact on society and the workplace.

The court found that the arbitrator failed to consider the serious nature of the misconduct committed by the employee and its impact on the workplace. The employee in this matter also did not show any form of remorse for his utterances. In fact, at arbitration, he blatantly denied using the k-word.

The arbitrator's decision to reinstate the employee was reviewed and set aside by the CC.

The following extracts of the SARS judgment are worth highlighting –

"[2]…to still have some white South Africans address their African compatriots as monkeys, baboons or [k******] and impugn their intellectual and leadership capabilities as inherently inferior by reason only of skin colour, suggests the opposite. And does in fact sound a very rude awakening call to all of us"

"[43] The notion that the use of the word k***** in the workplace will be visited with a dismissal regardless of the circumstances of a particular case, is irreconcilable with fairness. It is conceivable that exceptional circumstances might well demonstrate that the relationship is tolerable"

"[56]…Mr Kruger’s utterances constitute a racial minefield in the workplace ever-ready to explode at the slightest provocation. Conduct of this kind needs to be visited with a fair and just but very firm response by this and other courts as custodians of our constitutional democracy, if we ever hope to arrest or eliminate racism"

[Our emphasis added]

Closing remarks

Racism and discrimination were hallmarks of the apartheid regime in South Africa. It is for this reason that acts of racism in post-apartheid South Africa are viewed in such a serious light. Racism in the workplace is therefore an issue that employers should address and eradicate. The Duncanmec judgment states as follows –

"Regrettably, so far the Constitution has had a limited impact in eliminating racism in our country. Its shortcomings flow from the fact that it does not have the capacity to change human behaviour. There are people who would persist in their racist behaviour regardless of what the Constitution says. It is therefore the duty of the courts to uphold and enforce the Constitution whenever its violation is established" [Our emphasis added]

Read together, these judgments demonstrate that racism in the workplace is not always overt and that it can also be subtle and nuanced. The approach of our courts is careful and considered. The three judgments also demonstrate that the courts will take into account South Africa's historical context and the history of the word or phrase used when dealing with such matters.

It is crucial for the employer to handle incidents of racism in the workplace as firmly but also as fairly as possible. If racism is found to exist, employers should take the following factors into account when determining the appropriateness of sanction –

 

In conclusion, the point of departure is that racism committed by an employee does not automatically mean that dismissal is the appropriate sanction to impose. The employer must consider the facts and circumstances surrounding the matter. A value judgment is required. As seen from the courts, it is inevitable that such matters reflect on the history of racism in South Africa.