There has been a lot to talk about on this topic following on from the Constitutional Court Ruling on 17th May 2018 in the matter between Rustenburg Platinum Mine vs South African Workers Association obo Meyer Bester.
In summary, the facts and history of the case leading up to the Constitutional Court are as follows.
The case relates to an incident in 2013 wherein Mr Bester pointed his finger at a fellow worker and told him “verwyder daar die swart man se voertuig”. Mr Bester was charged with insubordination and making racial remarks and was dismissed following a disciplinary enquiry. During the enquiry he denied ever saying the words “swart man” and was unrepentant and confrontational with the employer’s witness.
The matter was referred to the CCMA and the Commissioner found that “swart man” was a descriptor and not racist. The dismissal was found to be both substantially and procedurally unfair.
The matter was then taken to Labour Court on review. The Labour Court found that referencing a person as “swart man” was in fact racist and derogatory and that Mr Bester was fairly dismissed.
Mr Bester then lodged an appeal in the Labour Appeal Court. The Court found that taking into account the context in which the phrase was used, the inference was that the phrase was not necessarily racist and derogatory and the dismissal was therefore found to be unfair both substantively and procedurally.
Finally the matter went to Constitutional Court which found the following:
- The Labour Appeal Court’s point that the phrase was neutral did not take into account or recognise the legacy of apartheid and racial segregation which has resulted in us living in a country that is racially charged.
- CCMA and The Labour Appeal Court also failed to take into account the circumstances around the use of the phrase “swart man”.
- Mr Bester also did not show any remorse for his actions and had made no attempt to apologise.
The Constitutional Court found that the dismissal was the appropriate sanction.
This decision is an important one because it deals with the more subtle and less obvious forms of racism and assists in creating a test for determining whether a neutral statement is in fact neutral or racist.
As employers, it is imperative that we understand our obligations in this regard and have adequate policies, rules and procedures in place to ensure that employees understand what is and is not acceptable as well as what the consequences are if they transgress. This is especially true taking into account the Bill for “The Prevention and Combating of Hate Crimes and Hate Speech Bill”.
The Bill aims to provide protection for person or persons against any form of communication which is threatening, abusive or insulting.
Once adopted, this Bill will criminalise hate speech and hate crimes which often take place in the workplace. This Bill will now make employees susceptible to disciplinary and civil action as well as criminal prosecution.
We are entering a time where people will be held accountable for their actions and as employers we need to be moving forward too.
If you require assistance with policies and procedures relating to racism in the workplace, please feel free to contact firstname.lastname@example.org for assistance.