Employment law update – Use of race to describe a person may not be derogatory or offensive

October 1st, 2017
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Nadine Mather BA LLB (cum laude) (Rhodes) is an attorney at Bowmans  in Johannesburg.

In South African Equity Workers Association obo Bester v Rustenburg Platinum Mine and Another [2017] 8 BLLR 764 (LAC), Mr Bester, a senior training officer, became irritated when he discovered that a co-worker was parking a large 4X4 vehicle in a parking bay adjacent to the one allocated to him, making parking difficult. He decided to take the matter up with the chief safety officer, who was responsible for allocating parking, in an effort to arrange for the vehicle to be parked in another bay. He was, however, brushed off by the chief safety officer despite numerous efforts to resolve the problem. Finally, Bester confronted him during a meeting and demanded that the ‘swartman’ (black man) remove his vehicle from the parking bay. The chief safety officer accused Bester of not wanting to park next to a ‘swartman’, and Bester was dismissed for insubordination and for making certain racial remarks. Bester referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The CCMA commissioner ruled that Bester’s dismissal was unfair and reinstated him. On review, the Labour Court (LC) held that there was no conceivable reason as to why race may justifiably be used as an identifier and that Bester’s reference to his co-worker as a ‘swartman’ was derogatory and racist. The LC found further that the commissioner had failed to appreciate the significance of the employer’s zero-tolerance approach to racism in the workplace, set aside the award and ruled that the dismissal was in fact fair. Bester appealed the LC’s decision.

The Labour Appeal Court (the LAC) took cognisance of the fact that racism is particularly pervasive in the workplace and our courts have rightly condemned it. However, the employer bore the onus of proving that the terminology used by Bester was objectively derogatory. If it was, the onus shifted to Bester to show that the remark was not made with the intent to demean. The LAC accepted that to identify people by their race is not in itself derogatory, even if the person referred to or those present are offended. The test is whether, on a balance of probabilities, the person had intended to use the term in a derogatory and offensive manner.

While Bester was angry with the chief security officer and wanted the parking problem to be resolved, he did not know the name of the owner of the vehicle parked adjacent to him. The mere fact that Bester was white and the owner of the offending vehicle happened to be black was insufficient to warrant the inference that Bester intended to offend. It was clear from the evidence that the issue in dispute had nothing to do with race or that Bester had objected to parking next to a ‘swartman’. The real issue was whether the use of the descriptor ‘swartman’ to identify the owner of the vehicle was derogatory and racist.

The LAC had found that the LC had ignored the following facts when it remarked that there was no conceivable reason for Bester to use the term ‘swartman’ that –

  • Bester did not know the person he was trying to identify and, therefore, had no reason to offend him;
  • Bester had a close working relationship with the chief security officer; and
  • Bester was fully aware of the implications of racism in the workplace.

The main issue was that Bester was required to identify the owner of the vehicle, whose name was unknown to him and he used race as a descriptor to do so. This was the conclusion drawn by the commissioner, and could not be said to be unreasonable.

The LAC noted that the use of race descriptors to identify people is akin to racial stereotyping and should be discouraged. However, given South Africa’s history, it would be remiss to overlook the tendency to identify people by their race. If doing so carried the stigma of racism, organisations seeking to perpetuate black consciousness would be condemned. Our society has not adopted so absolute a stance. The LAC also noted that, ironically, during the proceedings, one of the employer’s witnesses had described a fellow employee whose name he could not recall as a ‘swart mannetjie’. It is thus imperative that one scrutinises the context in which a race descriptor is used and not to presume that the mere use of a race descriptor will be derogatory and offensive.  The appeal was accordingly upheld.

The requirement that psychological tests be certified has been found to be irrational

The Employment Equity Amendment Act 47 of 2013 (the Act) and accompanying regulations came into force on 1 August 2014. Prior to the Act, s 8 of the Employment Equity Act 55 of 1998 (the EEA) prohibited psychological testing and similar assessments of an employee if it could not be shown that the test or assessment being used was valid and reliable, could be applied fairly to all employees, and was not biased against any employee or group. The Act amended s 8 of the EEA by introducing an additional requirement that psychological testing and similar assessments be prohibited if they have also not been certified by the Health Professions Council of South Africa (HPCSA) or any other body authorised by law to certify such tests or assessments.

In Association of Test Publishers of South Africa v President of the Republic of South Africa and Others [2017] 8 BLLR 850 (GP), the applicant, a voluntary non-profit association representing persons who apply such tests and assessment tools, made an application to the High Court for an order declaring the amendment to s 8 of the EEA to be of no force and effect. The applicant contended that the amendment was premature as there was currently no framework in place regulating the certification of psychological testing and other similar assessments and, accordingly, there was nothing to be certified by the HPCSA. The issue to be determined by the court was thus whether there was in fact a framework in place for the certification of psychological testing.

The court noted that the law requires the exercise of public power to be lawful and rationally connected to the purpose for which the power was given. The rationale behind the amendment to s 8 of the EEA was to ensure that certain individuals were not excluded from employment by the use of inappropriate psychological tests that had not been adapted to the cultural diversity of South Africa. The applicant was concerned that no provision had been made in the amendment to indicate the type of test that needed to be certified or the objective criteria for the certification of tests or similar assessments. Significantly, the amendment had the effect of immediately prohibiting the current use of psychological testing without first having established procedures and criteria to obtain certification of such tests.

In response, the president and Minister of Labour claimed that the system and policy currently in place at the HPCSA was still applicable. However, they had not addressed the distinction between psychological and non-psychological tests and the HPCSA itself had conceded that it was still developing new regulations relating to the control of psychological tests. It was also apparent that the current policy in place dealt with the classification of psychological testing, not with their certification.

The court held that classification and certification are different concepts and s 8 of the EEA only uses the word ‘certify’. In terms of the amendment, if a psychological test is not certified, it is prohibited. A regulatory structure dealing with the certification of psychological testing was, therefore, a necessity. Accordingly, the amendment was set aside and the previous version of s 8 of the EEA was revived.

This article was first published in De Rebus in 2017 (Oct) DR 39.

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