Nkuna v Outsurance Insurance Company Limited [2021] 4 BALR 408 (CCMA)

In the case of Nkuna, Ms Nkuna (the applicant) was an employee of Outsurance Insurance Company Ltd for a total period of five years where she served as an Inbound Sales Advisor at their head offices. The applicant was a member of a WhatsApp group, which comprised of mainly her team members and on one occasion the applicant sent a text to the group, which read: ‘The MF was a racist piece of sh*t’ out of frustration following an unsuccessful sale’s pitch with a potential client who expressed an interest in signing with a company that serviced mainly Afrikaans people (see para 17). The applicant perceived the sending of such a text as nothing more than blowing off steam (see para 42), which was common among the members of the group, however, certain members received her text as one full of racist undertones, which ultimately led to her dismissal on 5 June 2020 following a disciplinary hearing (see para 6).

The matter was escalated to the Commission for Conciliation, Mediation and Arbitration. The basis of the applicant challenging the dismissal was that there was inconsistent application of discipline by the employer where racist complaints are concerned (see para 48). Previously, a Team Leader only received a final written warning for using language such as ‘b*tch n*ga’ and creating a WhatsApp group titled ‘blacks only,’ however, the applicant was dismissed without any form of warning (see para 14). An arbitration, therefore, took place and the issue to be determined was whether the applicant was procedurally and substantively unfairly dismissed taking into consideration the inconsistent application of discipline by the employer.

In the case of Rustenburg Platinum Mine v South African Equity Workers Association obo Bester and Others [2018] 8 BLLR 735 (CC), the court held that there are a number of factors that a Commissioner ought to consider when deciding on the fairness of a dismissal. Though not considered to be a closed list, however, the factors are as follows:

‘(i) the importance of the rule that was breached; (ii) the reason the employer imposed the sanction of dismissal; (iii) the basis of the employee’s challenge to the dismissal; (iv) the harm caused by the employee’s conduct; (v) whether additional training and instruction may result in the employee not repeating the misconduct; (vi) the effect of dismissal on the employee; and (vii) the long-service record of the employee’.

To evaluate the substantive fairness of the applicant’s dismissal, the context and circumstances of the misconduct were, therefore, considered.

The rule against racism in the workplace is and was an important rule, however, it did not warrant the automatic dismissal of the applicant without considering all the circumstances of the case (see para 69). The reason given for the dismissal of the applicant was that she was in fact guilty of the charges she faced, namely, introducing a racial narrative on a social platform used as a business tool within the working environment, showing poor team relations as her conduct resulted in team members feeling racially offended and/or singled out, potentially bringing the name of the company in disrepute, and creating an environment of racial segregation, which goes against the values of the company (see para 6).

However, this finding was proven to be incorrect as the applicant successfully showed that the racial narrative was introduced a year before by the Team Leader who used foul language such as ‘b*tch n*ga’ among other racist acts, therefore when the applicant sent the text, such narrative had already been introduced.

The applicant’s grievance was majorly fuelled by the fact that the said Team Leader only received a final warning for her racist conduct whereas the applicant was automatically dismissed for her similar conduct. There was no evidence that could suggest that the applicant is a racist person or that she was incapable of learning from her mistakes (see para 73), which therefore begs the question of why she was disciplined in a harsh manner which would leave devastating consequences for her career and her financial income (see para 73).

Taking into consideration all the above-mentioned factors a conclusion was reached to the effect that the dismissal was procedurally fair, however, it was substantively unfair. It was shown that the decision of the employer was overly punitive and there was a general view that progressive discipline would have been effective especially since the employer did not suffer any loss from the conduct of the applicant (see para 73). In essence, the same standard of punishment that was imposed on the Team Leader should have been applied to the applicant as well.

The case of Nkuna gives a perspective that indicates that rules against racism in the workplace were and still are important, however, such rules should not lead to an automatic dismissal of an employee – every case should always be dealt with based on its own merits and account, taking into consideration all the relevant circumstances of the particular case. This was conveyed in the case of South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others [2017] 1 BLLR 8 (CC) where it was argued that courts have the duty to ensure 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*ffir 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.’

It thus becomes clear that the violation of the applicant was in fact a serious one and rightly so ought to be sternly corrected in order to ensure a racist free working environment. However, employers should always strive to maintain consistent application of discipline in the workplace – because as shown in the case of Nkuna, inconsistency can render such discipline and dismissal by employers unfair.

Lebogang Mabitsela LLB (Wits) is a candidate legal practitioner at Snail Attorneys @ Law in Pretoria.

This article was first published in De Rebus in 2021 (Aug) DR 33.