RACISM IN THE WORKPLACE TRUMPS PROCEDURE[Monday, September 04, 2017 13:22:34]
Employees have a right to freedom of expression, privacy and dignity. However, such rights are subject to the overarching rules and standards that are common of all workplaces. One rule which is generally accepted, is the rule which commands mutual respect between employees, and between employees and their employers. Until recently, if the employee has committed serious misconduct but has been let off with a warning, the employer was usually not allowed to increase the sanction to dismissal. But now, since the recent Constitutional Court decision in SARS v CCMA & others (2017) 38 ILJ 97 (CC), racism trumps unfair procedure in a disciplinary hearing.
In the SARS case, the employee was upset with his manager and said out aloud in the office, “I cannot understand how kaffirs think”. Apparently, the employee had a temporary cranial disconnect and allowed his emotions- which were moulded and influenced by his upbringing during the Apartheid era - to get the better of him.
The disciplinary process
The employee realised his grave error and pleaded guilty at the disciplinary hearing. The disciplinary chairperson applied mercy, forgave the sinner and meted out punishment in the form of a final written warning valid for six months, suspension without pay for ten days and counselling. The Commissioner of SARS was less forgiving and substituted the punishment to summary dismissal.
The Labour Court
The Court was appalled by the employee’s conduct in uttering the racist comment, but held the employer to its disciplinary procedure, which provided that the employer may not increase the punishment after the disciplinary chairperson had imposed a sanction which is less severe.
The Constitutional Court
The Concourt effectively changed the law relating to disciplinary procedure which was applied until now, by finding that notwithstanding the breach of the disciplinary procedure by SARS in increasing the punishment, the conduct was so grave as to lead to the inescapable conclusion that the employee should be dismissed. The Concourt found that the reinstatement of the employee (as found by the CCMA commissioner and endorsed by the labour court) was a decision that no reasonable decision maker could have made in the circumstances.\
Racism in the workplace
The Concourt was scathing about the use of the word “kaffir” in South African society and in the workplace in particular. The Concourt gave an historical dissertation of the word kaffir. It quoted a certain Dr Baderoon who said that it is “the most notorious word in South African history, known most pointedly for its license of violence towards Blacks during apartheid, but first used and elaborated during the colonial period … that it is offensive in all senses and combinations to the extent of being unspeakable today, its use now constitutes a hate crime in our country and is unpardonably painful and violent.” The court remarked that the said author’s comments are in line with the observation made 33 years ago, by the Supreme Court judges Van Rensburg J and Jennett AJ in S v Puluza 1983 (2) PH H150 (E) that: ‘When a black man is called a “kaffir” by somebody of another race, as a rule the term is one which is disparaging, derogatory and contemptuous and causes humiliation.’
Up until this Concourt judgment, the employee would usually win his unfair dismissal case if the employer had disregarded its own procedure by dismissing the employee- if the initial sanction imposed by the chairperson was less severe.
This case shows that, even though fair procedures are important in disciplinary hearings, employers may now sacrifice blind adherence to fair procedure in favour of instilling discipline where serious and grave misconduct such as racism is present in the workplace.
Rudolf Kuhn- labour law attorney, Pretoria, March 2017