National Union of Metalworkers of South Africa obo Simons and Others v National Glass Distributors [2015] 11 BALR 1137 (MEIBC) and Duncanmec (Pty) Ltd v Gaylard NO and Others (CC) (unreported case no CCT 284/17, 13-9-2018) (Jafta J (Zondo DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Madlanga J, Petse AJ and Theron J concurring))

By Nadia Froneman

In the case of National Union of Metalworkers of South Africa obo Simons and Others v National Glass Distributors [2015] 11 BALR 1137 (MEIBC), the Metal and Engineering Industries Bargaining Council was tasked with determining the substantive fairness, or otherwise, of the dismissal of four striking employees who chanted ‘F** of Mlungu’ while picketing.

The applicants were dismissed for the unauthorised use of company property; making defamatory, inciting, offending accusations and/or statements; and the intimidation and threatening behaviour towards members of management. The video footage was presented as evidence in the arbitration, which was supported by the following facts: One, Fourie was the acting factory manager at the time of the strike. An approximate 60 striking employees were not granted permission to picket on the company’s premises. The striking employees, however, moved onto the company’s premises and picketed in the carport area. Fourie, and others, tried to push the crowd back to shut the ‘roller shutter door’ on them, but  when they shut the door the striking employees began banging on the door. Fourie went out the pedestrian door to try and address the striking employees and tell them to get off the company’s premises, that is when the striking employees began singing ‘F** of Mlungu’ repeatedly and continued to move towards Fourie, pointing at him as they sang. Fourie began filming the striking employees, he closed and locked the gate of the factory.

The striking employees were carrying knop kieries and sticks, Fourie was the only white man present at the time of the incident.

Fourie testified that he felt intimidated by the striking employees’ behaviour and that he believed that the song was compiled for him.

The applicants argued that the song they sang was not racist and that they sang the song at other companies that have black managers. They testified that the song was not directed at any particular person. In their minds, they testified, the song meant ‘loop, loop baas ons is moeg van julle’, ‘go boss’ and later ‘go white man’.

The arbitrator held:

‘A direct translation of Mlungu is “white man”. The word Mlungu can clearly be used in a different context and will not be offensive. What must be considered in this instance is the context and circumstances in which this word was used. In the matter before the word “f** of” was used with Mlungu. Translated into English it means “f*** off white man”. The evidence also established that these offensive words were directed at Mr Fourie who was the acting factory manager at the time.’

In the circumstances, the arbitrator held that dismissal of the striking employees was substantively fair.

The arbitrator went further and held that the striking employees’ conduct amounted to harassment and intimidation and that a single instance where racial swear words or expletives are used constitutes harassment and is dismissible. In this regard, the arbitrator stated that racially abusive language used by an employee and directed at either another employee or third party justifies dismissal. In this particular case, the arbitrator was satisfied that the striking employees had directed their song at Fourie. The evidence in this regard, including the video footage, was overwhelming.

Similarly, in the case of Duncanmec (Pty) Ltd v Gaylard NO and Others (CC) (unreported case no CCT 284/17, 13-9-2018) (Jafta J (Zondo DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Madlanga J, Petse AJ and Theron J concurring)), the Constitutional Court (CC) was recently tasked with determining two critical issues, namely:

• whether the conduct of striking employees who sang the isiZulu struggle song, the lyrics of which translated are ‘Climb on top of the roof and tell them that my mother is rejoicing when we hit the boer’ constituted racism; and
• whether the award rendered by the arbitrator, in terms of which the employees were reinstated and awarded three months’ compensation, was vitiated by unreasonableness.

In determining the first issue, the CC held that the word ‘Boer’, which (depending on the context) may mean ‘farmer’ or ‘white person’, is not an offensive term in and of itself. The CC highlighted that the arbitrator concluded that the song was inappropriate and that ‘it can be offensive and cause hurt to those who hear it’ but that she also drew the distinction between ‘singing the song and referring to someone with a racist term’.

The National Union of Metalworkers South Africa (NUMSA), acting on behalf of the dismissed employees, did not take issue with the finding that the singing of the song at the workplace was inappropriate and offensive in the circumstances. The CC was, therefore, willing to approach the matter on the footing that the employees were guilty of a racially offensive conduct.

According to the CC, the answer to the first issue is yes, the conduct of the striking employees was racist.

In determining the second issue, the CC held that an ‘unreasonable’ arbitration award is one which could not be made by a reasonable decision-maker and would warrant interference. To this end, it held that the reviewing court need not evaluate the reasons for the arbitrator’s decision to determine whether it agreed with them and whether the court disagreed with them is not material.

Duncanmec accused the arbitrator of going soft on racism and argued that dismissal was the only appropriate sanction. The CC disagreed and held that dismissal does not flow as a matter of course in matters concerning racism. The CC held: ‘What is required is that arbitrators and courts should deal with racism firmly and yet treat the perpetrator fairly’, and ‘such a rigid rule would be inconsistent with the principle of fairness which constitutes the benchmark against which dismissals are tested’.

The CC, ultimately, held that it was clear from the arbitrator’s award that she had applied her mind to the facts of the case, the context in which the misconduct was committed and the competing interests of Duncanmec and the employees before rendering her award. As such, the arbitrator applied a moral or value judgment to established facts and circumstances, which was required of an arbitrator. The CC was satisfied that all of this shows rationality in the reasoning leading up to the arbitrator’s decision and, therefore, the reasonableness requirement was met and, as such, the CC dismissed the appeal.

The CC in this case was dealing with an appeal pertaining to a review of the arbitration award in the Labour Court (LC). The LC agreed with the arbitrator and made her award an order of court. The fact that the CC did not uphold the appeal does not mean that it agreed with the arbitrator’s reasoning or award. It merely means that it considers it to be reasonable in the circumstances and that a reasonable decision maker could have made the same, or a similar, award.

In conclusion, it is clear from these two judgments that the context in which potentially racial utterances are made will be determinative of whether dismissal is an appropriate sanction. If one compares the two cases it becomes clear why the dismissal of the striking employees in the Glass Distributors case was fair and that of the striking employees in the Duncanmec case was not. In the Glass Distributors case the striking employees entered the company’s premises without authorisation and directed the song at Fourie, where they pointed at him as they were singing and moved toward him in unison and in an intimidatory manner. On the other hand, in the Duncanmec case, the striking employees were not referring to someone in particular with a racist term and the strike was peaceful and short lived.

• See also Moksha Naidoo ‘Is dismissal the only appropriate sanction for acts of racism?’ 2018 (Nov) DR

Nadia Froneman BSocSci LLB (cum laude) (Rhodes) is an attorney at Eversheds Sutherland in Johannesburg.

This article was first published in De Rebus in 2018 (Dec) DR 34.