Recently, the Constitutional Court in Duncanmec (Pty) Ltd v Gaylard N.O and Others considered whether racially offensive conduct in the workplace could result in immediate dismissal.
The facts before the court required a consideration of whether the singing of a struggle song by employees was racist and warranted the sanction of dismissal. The words in the song, when translated from isiZulu, said: “Climb on top of the roof and tell them that my mother is rejoicing when we hit the ‘boer’.”
The employees in question belonged to NUMSA, and sang the song in the context of an unprotected, albeit peaceful strike. They were charged and found guilty of racially offensive conduct. At arbitration stage, the arbitrator held that although the singing of the song was inappropriate, and potentially offensive, it was not racist:
“I am of the view that a differentiation between singing this song and referring to someone with a racist term needs to be drawn. This is since this song is a struggle song and there is a history to it. While this is the case the song can be offensive and cause hurt to those who hear it.”
The arbitrator ordered the employees’ reinstatement but limited their compensation to show disapproval of the singing. The award was taken on review. The Labour Court found that the award was not reviewable.
At the outset, the Constitutional Court noted that the term ‘boer’, meaning “farmer” or “white person”, is not a racially offensive term. Duncanmec asserted that the context rendered the singing of the song a racist act. In the absence of any further analysis, the court then notes that because NUMSA did not take issue with the Labour Court’s finding that singing the song was inappropriate and offensive in the circumstances, the court is “willing to approach the matter on the footing that the employees were guilty of racially offensive conduct”.
Having deemed the singing of the song as racist, the court goes on to note that dismissal cannot follow as a matter of course where racist conduct occurs. Jafta JA notes that “there is no principle in our law that requires dismissal to follow automatically in the case of racism. What is required is that arbitrators and courts should deal with racism firmly and yet treat the perpetrator fairly”.
As a result of this judgment, employers should not impose a sanction of dismissal as a matter of course when dealing with racially offensive misconduct. The important consideration is how the conduct has impacted the trust relationship between employer and employee. As such, it appears that an employee found guilty of racist conduct may not necessarily face immediate dismissal where it can be shown that no damage to the trust relationship has occurred.
This article is written by candidate attorney Abigail Butcher and supervised by Melanie Hart.