“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
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)