This article discusses two recent Constitutional Court judgments, which deal with racism, or perceived racism, in the workplace. Although each judgment and respective outcome should be understood in the context of the specific facts, certain parallels are worth noting. Both judgments had to decide whether the language used in the context was racist. In both cases, the employees concerned were dismissed by the employer and the employer’s decision was challenged by way of arbitration proceedings. In both cases, the arbitrator directed that the employees be reinstated. The Constitutional Court, in both cases, applied its well-known Sidumo test to decide whether or not the awards should be upheld. The test determines whether the decision made by the arbitrator is one which a reasonable decision-maker could not reach. The test ensures the constitutional rights to fair labour practices and administrative action which is lawful, reasonable and procedurally fair. The two judgments are now discussed.

Rustenburg Platinum Mine v SAEWA obo Bester and Others

Mr Bester was an employee at Rustenburg Platinum Mine. An incident occurred on 24 April 2013, the details of which were disputed. The Constitutional Court ultimately accepted that Mr Bester interrupted a safety meeting and demanded that a car which was parked next to his own be removed. He pointed his finger at the applicant’s chief safety officer, Mr Sedumedi, and loudly commanded, “Verwyder daardie swart man se voertuig”, in reference to another employee’s 4x4 vehicle, otherwise he would take the matter up with management.

Mr Bester was forthwith suspended pending the outcome of a formal disciplinary enquiry. He was charged with two acts of misconduct, namely: insubordination for disrupting the safety meeting and for making racial remarks, which breached a workplace rule prohibiting abusive and derogatory language. On 28 May 2013, Mr Bester was dismissed by the applicant after being found guilty on both grounds.

Mr Bester referred the dispute to the CCMA for arbitration and the arbitrator’s award was taken on review to the Labour Court, the Labour Appeal Court and ultimately to the Constitutional Court. The arbitrator concluded in his award that the dismissal was both substantively and procedurally unfair and ordered the reinstatement of Mr Bester. However, the arbitrator misdirected himself on the facts and found in favour of Mr Bester that in the context the words “swart man” were used, it was innocuous and for the purpose of identification. This defence had not been raised and was unsupported by evidence. Mr Bester’s defence was to deny making the statement.

In the Constitutional Court, Theron J, in a unanimous judgment, held that to regard the words “swart man” as innocuous in the context, ignores South Africa’s past of institutionally entrenched racism. The objective test had to be applied to the correct facts. On this basis, “swart man” was “racially loaded and derogatorily subordinating”. The arbitrator’s conclusion was one that a reasonable decision-maker could not have reached. The sanction of dismissal was reinstated, due to Mr Bester’s dishonesty in denying making the statement and his lack of remorse.

Duncanmec (Pty) Limited v Gaylard N.O. and Others

In this case, nine employees participated in an unprotected strike and were filmed singing a struggle song which featured lyrics that translate to, “Climb on the rooftop and shout that my mother is rejoicing when we hit the boers”. The employees were found guilty of participating in an unlawful strike action and also for singing a racially offensive song. After being given a final warning for the former offence, they were dismissed on the latter offence. Duncanmec justified its decision by contending that the conduct of the employees irreparably eroded the trust relationship between employer and employees.

Before the Bargaining Council, the arbitrator ordered the reinstatement of the employees, reasoning that the employees showed remorse and that the employment relationship had not broken down irretrievably. In addition, it was necessary to distinguish between singing a song which could cause harm and referring to someone in racist language.

The Constitutional Court, in a unanimous judgment written by Jaftha J, noted that increasing instances of racism in the workplace were becoming worrisome. It held that the use of the word “boer” in isolation was not racist or a racially offensive word, but that in the particular case, its use in the song sung by the employees was inappropriate and racially offensive. The Court, however, in applying the Sidumo test, held that the arbitrator had not acted unreasonably, nor, as contended by Duncanmec, applied her own sense of fairness in determining that the dismissal was substantively unfair. The award was therefore upheld.

Conclusion

In conclusion, in the light of these two recent judgments, it is evident that racism in the workplace is a recurring issue with which courts must deal to hold individuals accountable if their conduct is found to be racially offensive and an infringement of constitutional rights. However, it is unrealistic to expect that courts, or the threat of legal action, can prevent persons in the workplace from persisting with racist behaviour. It is therefore important that employers have adequate rules in place which expressly prohibit racist words and conduct, so that violations can be dealt with expeditiously and effectively. The judgments also indicate that should those found guilty of racism show no remorse, dismissal will be viewed as an appropriate sanction.