Employment law update – Is dismissal the only appropriate sanction for acts of racism?

November 1st, 2018

Moksha Naidoo BA (Wits) LLB (UKZN) is a practicing advocate holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

Duncanmec (Pty) Ltd v Gaylard NO and Others (CC) (unreported case no CCT 284/17, 13-9-2018) (Jafta J, with Zondo DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Madlanga J, Petse AJ and Theron J concurring)

In the context of strike action, does the song, which includes the lyrics ‘climb on top of the roof and tell them that my mother is rejoicing when we hit the boer’, sung by striking employees; constitute a dismissible offence?

During an unprotected strike nine National Union of Metalworkers South Africa (NUMSA) members, employed by the appellant, sang a struggle song, which included the above words. They were charged with embarking on unprotected strike action and gross misconduct in that they behaved in an inappropriate manner by ‘singing racial songs in an offensive manner’.

The chairperson found the employees guilty of both charges. On the first charge, the chairperson saw fit to sanction each employee with a final written warning, while finding dismissal an appropriate sanction in respect of the second charge.

NUMSA challenged the dismissals at the bargaining council and arbitration came before the first respondent arbitrator. While accepting the song was inappropriate within the context of a workplace and could cause hurt in the working environment, the arbitrator found that a distinction should be drawn between singing the song and referring to someone using a racist term. This distinction, according to the arbitrator, was borne out of the fact that the struggle song had a history to it.

Since the unprotected strike was peaceful and lasted only a few hours, together with the fact that the employer had not established that the trust relationship between the parties had been broken; the arbitrator was not convinced dismissal was a justified sanction following which, she awarded the employees reinstatement. To show her disapproval of singing the song, the arbitrator did not reinstate the employees retrospectively but rather limited the employee’s compensation to three months each.

On review the Labour Court held:

‘An argument that singing the song at the workplace had compromised the continued trust relationship between the employer and the striking employees is unsustainable. An alleged lack of remorse is in itself far-fetched in this Court’s view. The employees conceded they sang the song, however they deny that it is wrong to sing it in a work environment and had the potential to cause hurt to other employees particularly white employees, however these employees’ denial is understandable considering the history of the song. This denial should not be construed as a sign that the employees were not remorseful of their participation in an unprotected strike.

It was not unreasonable, in this Court’s considered view, of the Commissioner to have found that there was no threat to management and that the strike or protest was relatively peaceful. It is recorded that the strike was a few hours after lunch and the employees returned to work on the next working day.’

The court found the arbitrator’s award was not unreasonable and dismissed the review application.

Having unsuccessfully applied for leave to appeal, as well as a petition to the Labour Appeal Court, the appellant approached the Constitutional Court (CC).

The appellant advanced two arguments before the CC. Firstly, singing the song amounted to hate speech and racism thereby justifying dismissal and secondly, the arbitrator applied her own sense of fairness over the issue of sanction, which was contrary to her statutory duty as an arbitrator.

Addressing the first argument, it was common cause that the term ‘boer’ was not racially offensive, however, within the context of NUMSA not taking issue with the arbitrator’s finding that the song was both inappropriate in the workplace and offensive in the circumstances, the court was willing to approach the matter on the basis that the employees were guilty of a racially offensive conduct. The question thereafter was whether the arbitrator’s findings on sanction was unreasonable or not.

The court highlighted the appropriate test on review, which was not to evaluate the reasons provided by an arbitrator to assess whether the court agrees with the arbitrator’s findings, but rather to determine whether the arbitrator has put up reasons in support of their finding and if so, whether those reasons are reasonable. Whether a reviewing court agrees with an arbitrator’s finding is immaterial to the inquiry.

Adopting this approach, the court deliberated on the argument that dismissal was the only appropriate sanction. The court firstly noted that the arbitrator did not find the song contained racist words, but rather it was inappropriate and could be offensive. However, even if the employees had been guilty of racist behaviour, dismissal was not an automatic sanction. On this the court held:

‘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. Thus in [South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others 2017 (1) SA 549 (CC)] this Court said:

“None of this should lead to the mistaken belief that the use of very strong derogatory language like k***** would always militate against the reinstatement of an offending employee. [Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others (2002) 23 ILJ 863 (LAC)] does not purport to lay that down or articulate it as an inflexible principle. On the contrary, the Court underlined the particularly crucial role that courts have to play of ensuring that racism or racial abuse is eliminated. And that they must fulfil that duty fairly, fully and firmly. 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.”’

In declining the appellant’s invitation to develop the law and prescribe that dismissal is the only appropriate sanction for racially offensive conduct, the court held that such an approach would be inconsistent with the principles of fairness.

The next issue was to determine whether the award was reasonable, put differently, whether the arbitrator’s reasons to justify her findings were reasonable. On this score the court held:

‘It will be recalled that in determining the fairness of the dismissal the arbitrator was applying a “moral or value judgment to established facts and circumstances”. A reading of the award shows that the arbitrator considered the competing interests of Duncanmec and the employees. Having weighed them up, she concluded that a final written warning and reinstatement, coupled with a limited compensation was a fair outcome. All of this illustrates rationality in the reasoning leading up to the impugned decision. Therefore, the reasonableness requirement has been met.’

The appeal was dismissed with no order as to costs.

This article was first published in De Rebus in 2018 (Nov) DR 47.