Sonja Vorster
I recently read an article by “Samiksha Singh, Director and Zoala Mcaciso, Employment, Cliffe Dekker Hofmeyer” and thought that this article would be of great importance to our readers.
The article mainly extracted aspects of a matter where the Labour Appeal Court (LAC) issued a very stern warning that it will not tolerate any form of racism in the workplace from employees and from employers.
The case referred to “City of Cape Town v Freddie & Others (2016) 37 IJL 1364 (LAC) reviewed and set aside an arbitration award in which the arbitrator found that the employee was unfairly dismissed for making repeated unsubstantiated racists allegations about his manager.
An employee’s manager guided the employee on how to properly compile a report. The manager instructed the employee to also seek assistance from a fellow employee to complete the report. However the employee embarked on a bombardment of emails to the manager.
The employee accused the manager of being incompetent and a dismal failure. The employee further copied various employees and forwarded these emails to them.
The employee was called in by the manager and requested to refrain from copying other employees in the offensive and inappropriate emails, but the employee then accused the manager of being a racist and compared him to Hendrik Verwoerd – who the Labour Appeal Court reflected on the history of the country and stated that Hendrik Verwoerd is known as the architect of apartheid as he, amongst other things, implemented a system of laws, which segregated the different races in our country and allowed the several atrocities to take place against black, coloured and Indian people without any impunity.
The employer eventually dismissed the employee on charges of serious misconduct in that he was grossly insubordinate, insolent and aggressive towards management and that he had sent derogatory and racially offensive emails to his manager, in an attempt to gain support from fellow co-workers against the manager.
During the Bargaining Counsel (BC) (similar to CCMA) matter, the employee tried to substantiate his claims in claiming that the manager insulted him in front of other staff and that he was discriminated against on the basis of his race. The BC found no evidence to prove racism alleged by the employee and that it was the employees subjective view.
The employee on the prompting of his attorney made a half-hearted attempt of remorse. The arbitrator felt that the employee showed remorse and found the employment relationship was not irretrievably broken down and since the employer was a large organisation that the employee could be transferred elsewhere. Thus the BC found the dismissal too harsh and unsubstantiated.
The Employer took the matter on review to the Labour Court and the LC agreed with the BC and placed emphasis on what it regarded as strong mitigating factors in favour of the employee. The employer took the Labour Court (LC) matter to the Labour Appeal Court to determine if the employee’s dismissal was an appropriate sanction.
The Appeal Court found in favour of the employer in that the BC arbitrator was wrong in ruling that the employee was remorseful as his apology was belated and only as a result of his attorney’s advice. The LAC found that due to the employee failing to show true remorse out of his own that the dismissal was substantively fair.
The court further found that the decision of the arbitrator in the case was not one of a reasonable decision-maker and that the employee’s dismissal was an appropriate sanction in the circumstances.
In respect of racial slurs made by the employee that the manager “was even worse than Verwoerd” (without justification or justifiable cause), the court found that it constituted an very offensive racial slur and was totally unacceptable in the workplace.
The court also found that racist language against a person constitutes hate speech and is prohibited in terms of the constitution and other laws on South Africa.
The court further referred to another matter in which it was ruled that: “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” These two judgements send a very clear message to employees and employers that racist conduct and unfounded allegations of racism in the workplace is wholly unacceptable and will not be tolerated by the courts.
