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February 23, 2017
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March 6, 2017

Employers and employees: Don’t tolerate workplace racism

A4b“There are many bridges yet to be crossed in our journey from crude and legalised racism to a new order where social cohesion, equality and the effortless observance of the right to dignity is a practical reality” (from the judgment below)

Our highest Court recently provided very strong confirmation that employers have both a right and a duty to stamp out racism in the workplace.

No “mollycoddling” for using the k-word

  • A SARS official used the k-word during an argument with his manager
  • He admitted it at a disciplinary hearing and was given a final written warning valid for six months, a suspension without pay for ten days, and a referral for counselling
  • When the SARS Commissioner changed that to outright dismissal, the employee challenged his dismissal in the CCMA, which ordered his reinstatement. Both the Labour Court and the Labour Appeal Court upheld the reinstatement and eventually SARS took the matter on appeal to the Constitutional Court
  • Finding that dismissal rather than reinstatement was the appropriate sanction, and thus upholding the appeal, the Court issued a strong message on the dangers of racism in the workplace: “The use of this term captures the heartland of racism, its contemptuous disregard and calculated dignity-nullifying effect on others. It bears repetition that [the employee’s] utterances constitute a racial minefield in the workplace ever-ready to explode at the slightest provocation. Conduct of this kind needs to be visited with a fair and just but very firm response by this and other courts as custodians of our constitutional democracy, if we ever hope to arrest or eliminate racism. Mollycoddling cannot cut it.”

Why not reinstatement?

There is a clear signal in this judgment to both employers and employees that in serious cases of racist behaviour, it won’t be easy to convince a court that reinstatement is appropriate:  “Where such injurious disregard for human dignity and racial hatred is spewed by an employee against his colleagues in a workplace” held the Court, “that ordinarily renders the relationship between the employee and the employer intolerable”.

Clearly therefore, serious offenders should generally expect the ultimate sanction of full dismissal.

Employers – procedural blunders will cost you

No matter how good a case you have against an employee for his/her dismissal, remember that not only must a dismissal be substantively fair, it must also be procedurally fair.  As the Court in this case put it “… the sanction of dismissal is so livelihood-threatening and serious that a breach of the relevant regulatory framework ought generally to be viewed in a serious light.”

So, because SARS had exposed the employee to avoidable litigation costs through a series of blunders in the way it handled the dismissal process, and despite the seriousness of the employee’s offence, the Court awarded him six months’ salary as compensation.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)


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