This article was written by Erwyn Durman, a Candidate Attorney at Norton Rose Fulbright South Africa
Employers now have the authority to sanction serious cases of racism with a dismissal. The Constitutional Court by overturning contrary judgments of the Labour Court and the Labour Appeal Court: ruled categorically that a dismissal is an appropriate remedy for “the worst kind of contempt, racism and insubordination”.
In South African Revenue Service (the employer) and Commissioner for Conciliation, Mediation and Arbitration (CCMA) and others [2016] ZACC 38 the Constitutional Court addressed racism as embodied by the word “kaffir”, which is a notorious term in South African history used to humiliate, denigrate and dehumanise Africans. The word “kaffir” is often referred to as the “k-word” in South Africa but the Constitutional Court held that this device has a neutralising effect which serves to further entrench racism in South Africa.
In this case an employee referred to his superior as a “kaffir”. The employer held a disciplinary enquiry in which the employee pleaded guilty and received a final written warning valid for six months, suspension without pay for ten days, and compulsory counselling. Unsatisfied with the outcome, the employer substituted the decision with one of dismissal.
The employee referred an unfair dismissal dispute to the CCMA, challenging whether the employer had the right to overturn the chairperson’s decision. The employee received an award in his favour, which was later reviewed in the Labour Court. The Labour Court dismissed the application on the basis that the collective agreement with the unions did not permit the employer to overturn the sanction of the chairperson. The employer again challenged the reversal of the dismissal in the Labour Appeal Court, but was once again unsuccessful.
The employer approached the Constitutional Court on the basis that the decision made by the CCMA was a decision that no reasonable decision-maker could reach.
The Court referred to section 193(1) and (2) of the Labour Relations Act, 1995 regarding the fairness of the dismissal and considered whether the remedies of re-instatement, re-employment or compensation were appropriate. It found that the abusive and derogatory language of the employee was not only directed at his superior but to all of his African colleagues, and that this was a demonstration of the worst kind of verbal abuse ever. In reference to the employer-employee relationship the court held: “Where such injurious disregard for human dignity and racial hatred is spewed by an employee against his colleagues in a workplace, that ordinarily renders the relationship between the employee and employer intolerable.”
The court set aside the remedy of reinstatement and found that no reasonable arbitrator would have granted this relief. The court begrudgingly awarded the six months compensation that had been offered by the employer.
The SARS case provides clarity that disparaging, hurtful and intentionally hateful behaviour amounts to a complete disregard for human dignity, equality and freedom, values enshrined in the Constitution. Employers can enforce a zero tolerance policy for racism of this kind with dismissal as an appropriate tool for enforcement.
