An employer who dismisses an employee for making derogatory comments in the workplace must prove both that the employee made the comments, and that the comments are objectively derogatory. In South African Breweries (Pty) Ltd v Heindrich Hansen and others (30 May 2017, CA06/2016) the Labour Appeal Court (LAC) dealt specifically with the use of the iniquitous term ‘k affir’ by a manager against an employee of a third party contractor, a truck driver. In doing so, the LAC set out what an employer must prove, and reiterated the test on review.
SAB dismissed the manager concerned for gross misconduct, i.e. making a racial and derogatory comment to the truck driver. After an internal appeal failed, the manager challenged the dismissal at the CCMA. The dismissal was found to have been procedurally fair but substantively unfair. The arbitrator found that SAB had not proved that the manager had made the comment “Julle k affirs is donnerse ewe onnosel” (meaning ‘you k affirs are all equally bloody stupid’). SAB was ordered to reinstate the manager with retrospective effect. Given the egregious nature of the misconduct and its organisational values, SAB brought an application to the Labour Court to review and set aside the arbitration award. The Labour Court found that the award was “not so unreasonable that no other arbitrator could have come to the same conclusion”.
SAB took the judgment on appeal to the LAC, and finally succeeded. In determining whether the Labour Court had erred by dismissing the review application, the LAC examined the evidence, dealt with what an employer is required to prove in such circumstances, and reiterated the test on review. In this case the arbitrator was faced with a version put forward on the one hand by the truck driver that the comment was made to him. On the other hand, the manager admitted that there was an altercation but denied having made the comment. A witness who overheard the discussion, a co-driver, gave evidence that corroborated the truck driver’s version. The manager denied that the witness was present, and relied on untested documents in this regard. However, the manager conceded that during the course of the altercation, the truck driver said to him “wie is jou k affir?” SAB not only led the evidence of the co-driver, but called his supervisor who saw the co-driver at the scene shortly after the altercation took place.
Despite this evidence, the arbitrator failed to determine the credibility of SAB’s witnesses. This is an exercise that she was duty-bound to undertake in order to decide whether SAB had discharged the onus to prove that the manager made the remark. The arbitrator relied on the appeal chairperson’s findings in respect of the credibility of SAB’s witnesses, and simply accepted the manager’s evidence. The LAC found that the arbitrator’s failure to apply her mind rendered the award one that a reasonable decision-maker could not make based on the evidence before her.
The LAC held that “[i]n the ordinary course, where derogatory and racial language is used in the workplace, the employer bears the onus to prove that the language used was objectively derogatory. However, where the word “k affir” is used… its derogatory connotation is so blatant as to be taken as established. It bears repetition in this regard, that being called a “k affir” is one of the “worst insults” in the South African context. However, the employer will still bear the onus to prove that the employee uttered the derogatory word/s”. In defending dismissals for use of racist language, in general, employers must lead sufficient evidence that the words were indeed used, and moreover, that the words are objectively offensive. This may be done by calling the victim of the insult and another employee who is not involved in the incident which gave rise to the dismissal. Ideally this could be a senior employee who also testifies to the breakdown of the trust relationship. It is clear from this case that if the use of the nefarious term ‘k affir’ is proved, its derogatory nature may be taken as established.
The Constitutional Court (CC) in SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others ((2017) 38 ILJ 97 (CC)) has affirmed that use of such language has no place in our constitutional democracy, stating that the word “was meant to visit the worst kind of verbal abuse ever, on another person.” The CC observed that the tendency to shift attention from racism to technicalities, may undermine the possibility of addressing racism directly. This tendency “coupled with the neutralising reference to the word k affir as the ‘k word’, is the entrenchment and emboldment of racism that we now have to contend with so many years into our constitutional democracy.”
However, the CC also cautioned against a retaliatory reaction. The Chief Justice held that the “notion that the use of the word k affir in the workplace will be visited with a dismissal regardless of the circumstances of a particular case, is irreconcilable with fairness.” A decision-maker must still consider whether the circumstances are such that a continued employment relationship would be intolerable. Relevant considerations would include whether the employee has shown remorse and apologised for his conduct. It would be in exceptional cases that such misconduct would be not be considered dismissible
While an employer need not prove how the use of the word ‘k affir’ is derogatory and extremely abusive, it must still prove that the word was used, and that a continued employment is consequently intolerable.
This article was written by Verushka Reddy, a Director at Norton Rose Fulbright South Africa