Employment law Update – Discrimination for false allegations of racism and insubordination

July 1st, 2019
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In Legal Aid South Africa v Mayisela and Others [2019] 5 BLLR 421 (LAC), the Labour Appeal Court (LAC) had to determine whether an employee’s dismissal for false allegations of racism and insubordination was fair. In this regard, the Commission for Conciliation, Mediation and Arbitration (CCMA) had found that the dismissal was substantively and procedurally fair. On review, the Labour Court (LC) upheld the finding that the dismissal was procedurally fair but found that the dismissal was substantively unfair because the employee had incorrectly been found guilty of six of the nine charges. The matter was remitted to the CCMA and another commissioner ordered reinstatement.

The employee’s dismissal stemmed from a low performance score that the employee obtained in his performance assessment. He challenged this and his supervisor provided him with the documentation on which the score was based and invited him to make representations on the score. She said that she may change the score based on his submissions. The employee refused to set up a teleconference call to discuss his performance and his supervisor perceived this as being obstructive and insubordinate. The employee on the other hand said that he had been willing to discuss his performance, but his supervisor had not followed up and arranged a call or meeting. The supervisor provided an e-mail as proof that she had indeed followed up on the meeting. The employee had responded stating that he wanted an explanation for his score in writing so that he could use this for his grievance. He went on to state ‘I don’t feel safe in my work anymore as an African manager’ and ‘I honestly think that Africans are being vilified … under the coded name of poor performance.’ The supervisor’s response to this was to again emphasise the importance of a meeting and thereafter the employee could refer a grievance. The employee again refused to have a teleconference call or to pursue a grievance and said that he would approach constitutional bodies such as the Public Protector and South African Human Rights Commission.

The LC was of the view that the employee was not required to attend the meeting and that the supervisor was side-stepping the issue and there was no need for a meeting. The LAC concluded that it is not up to the employee to determine how management should conduct performance assessments as this fell within management’s prerogative. The LAC furthermore rejected the LC’s finding that there needed to be a policy regulating such a meeting.

The LAC found that the LC had incorrectly determined that the employee was not guilty of some of the charges against him. In this regard, the employee had been grossly insubordinate as he had refused to attend meetings to discuss his performance. He had also accused his superior of conducting a witch hunt and had screamed and shouted at her. Furthermore, the employee had attacked the character of his superior and accused her of racism. The LC adopted a lenient approach with regards to the charge in which the employee accused his superior of racism as the LC seemed to be of the view that an employee could perceive a poor performance assessment as being as a result of racism. The LAC did not agree and emphasised that there needs to be a basis for alleging racism. In this case, the allegations of racism were unfounded and were a personal attack on the manager, which impacted her dignity. Furthermore, the employee had not followed an appropriate procedure to deal with the alleged racism but instead threatened to refer the matter to Parliament and the Public Protector, which was tantamount to intimidation. The supervisor later scheduled a meeting, which the employee did not attend and then he responded with a threatening e-mail alleging that she was intimidating and harassing him and that he withdrew his intention to meet with her until she showed him respect.

It was held that the LC should not have interfered with the commissioner’s findings and the appeal was accordingly upheld. It was emphasised that unjustified allegations of racism against a superior in the workplace can have a very serious and damaging impact on the work environment and can undermine management’s authority. It is, therefore, important that there are compelling reasons for the allegations and an appropriate process has been followed. Unfounded allegations of racism warrant disciplinary action.

Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.

This article was first published in De Rebus in 2019 (July) DR 27.