(Duncanmec (Pty) Ltd vs Gaylard NO and Others)
It made headlines on the 13 September that the Constitutional Court had ruled that use of the word “boer” is not racist or racially offensive.
What is more interesting in this case however is some of the detail behind the ruling which once again emphasises that fairness is the critical component in labour law disputes.
Background:
Between 30 April and 2 May 2013, a number of Duncanmec employees participated in an unprotected strike. While some of them only protested by refusing to work, nine employees were filmed dancing and singing songs. One of these songs was a well-known struggle song with lyrics that translate to “climb on the rooftop and shout that my mother is rejoicing when we hit the boers”.
The employees were found guilty by the company of:
(1) participating in unlawful strike action; and
(2) singing a racially offensive song.
They were given final warnings for the first offence and dismissed for the second. Duncanmec considered the conduct of the nine employees to have been so severe that it had irreparably eroded the trust relationship between it as employer and the employees.
In moving through the bargaining council and the Labour Court the following key points were given in relation to this specific case and the concept of fairness:
| • | The song was a well-known struggle song and the legacy of the country should not be ignored in the context of how such songs were utilised. |
| • | The strike was short lived and peaceful (acknowledged by all parties as such) and the song was not being used to promote violence. |
| • | The company’s policies did not prohibit the singing of the song. |
The Constitutional Court did note in their ruling the following:
| • | Persistent instances of racism in the workplace are becoming worrisome and although the new constitutional order can hold people accountable for racist conduct, it cannot by itself make people stop being racist. |
| • | The use of the word “boer” on its own is not a racist or racially offensive word (the context is important), but in this case the use of the word in a song by the employees was inappropriate. |
| • | The fundamental test was whether the arbitrator had been fair in her assessment that the employment relationship had not broken down irretrievably. Her reasoning was that the employees had shown remorse and that while the song could be offensive and cause hurt, there was a need to differentiate between singing the song and referring to someone in racist language. |
On this basis the ConCourt ruled that the arbitrator had acted reasonably.
Conclusion:
The lesson for employers in this case is that one cannot arbitrarily dismiss an employee(s) for using perceived racist language. A process must be followed and consideration given to the context and fairness of the particular circumstances as well as the workplace rules relating to such behaviour.