RACISM IN THE WORKPLACE[Tuesday, October 03, 2017 17:38:30]
It seems that the more that the Labour Courts and the CCMA emphasize the unacceptability of racism in the workplace, the rifer acts of racism in the workplace become. This trend is evident, more than 20 years into our democracy in cases reported in the Industrial Law Journal. However, it is important for the chairperson of a disciplinary hearing to evaluate the context in which words who appear to be racist, are made. It is equally important to ascertain what the intention was of an employee accused of racism.
In SA Breweries (Pty) Ltd v Hansen & others (2017) 38 ILJ 1766 (LAC), the employee was dismissed for uttering the words “julle kaffirs [sic] is almal donnerse [sic] ewe onnosel”. The employee referred an unfair dismissal dispute to the CCMA and won. The Employer appeal to the Labour Appeal Court [the LAC]. The LAC held that the CCMA commissioner was guilty of misconduct and had clearly abdicated her responsibility to independently scrutinise the Employer’s main witness’s testimony and failed to determine whether the conclusion reached by the internal chairperson on the witness’s credibility was sustainable.
Although the employer eventually succeeded in setting aside the employee’s reinstatement, this case illustrates that when utterly racist language is used in the workplace, the employee’s dismissal will always be justified due to the extremely unacceptable nature of the misconduct, even where the commissioner gets it wrong at the arbitration.
In SA Equity Workers Association on behalf of Bester v Rustenburg Platinum Mine & another (2017) 38 ILJ 1779 (LAC), the employee was dismissed for insubordination and making a racist remark by using the word ‘swartman’ [black man] when he had stormed into a meeting and aggressively demanded that the officer responsible for allocating parking bays to staff should “verwyder daardie swartman se voertuig” [“remove that black man’s vehicle”]. At the CCMA, the arbitrator found that the employee had used the word ‘swartman’, but that in the context it had not been derogatory and racist. He therefore found the dismissal to be unfair and ordered reinstatement with retrospective effect.
On review, the Labour Court found that some of the employees had subjectively viewed the use of the expression to be offensive. It therefore found that the employee had breached a workplace rule prohibiting abusive and derogatory language and that his reference to his fellow employee as a ‘swartman’ had been derogatory and racist.
On appeal, the LAC overturned the Labour Court’s findings and found that the use of the term “swartman”, was not objectively seen, derogatory, and the remark was not made to demean any person or employee in the workplace.
In Mayisela v CCMA & others (2017) 38 ILJ 1826 (LC), the Labour Court reviewed and set aside the arbitrator’s findings that the employee had misconducted himself by making an unjustified personal attack on the dignity, honour and good name of his manager, by accusing the manager of racism.
The court found that the employee had been entitled to give notice that he intended to report differential treatment and racism to his employer. This did not amount to an act of misconduct. The employee was accordingly reinstated in his employment.
It is recommended that employers appoint an external, independent and experienced chairperson to properly assess the evidence at disciplinary hearings to ensure that the charge of misconduct is appropriately assessed. The chairperson ought to firstly determine whether or not the conduct was committed and if so whether or not such conduct constitutes misconduct. Only if the employee is guilty, should an appropriate sanction be implemented.
Rudolf Kuhn- labour law attorney, Pretoria, October 2017