The new test for deciding whether an employee’s words are ‘offensive’

A number of recent incidents have once again brought the issue of offensive speech in the workplace to the fore.

However, the issue has popped up in a number of cases over the last few years, with a recent Constitutional Court case setting out the test for when language can be seen as racist and derogatory, and whether it constitutes dismissal.

According to Victor Mndebele, senior associate at ENSAfrica, in Rustenburg Platinum Mine and SAEWA obo Meyer Bester and Other the Constitutional Court dealt with the question of whether an employee referring to a colleague as a “swart man” (“black man”) constituted misconduct, justifying dismissal.

The Constitutional Court case came from an issue around allocated parking at the Rustenburg Platinum Mine, where a white employee was allocated a parking bay next to a black sub-contractor at the mine.

Concerned about the similar sizes of the cars that needed to park next to each other, the employee appealed to the manager to make arrangements for the sub-contractor to park elsewhere.

The matter was taken to the CCMA after the employee allegedly stormed into a meeting held by the manager, demanding that he must “remove that black man’s vehicle”. The employee alleged that the manager tried to make it a racial issue by saying that he (the employee) does not “want to park next to a black man…this is your problem”.

The CCMA accepted that the employee had the terms “black man”, but came to the conclusion that the term had been used in a descriptive sense rather than a derogatory sense.

On review, however, the Labour Court set aside the CCMA’s finding. It accepted the version of events described by the employer’s witnesses and came to the conclusion that the remark had had racist connotations.

The issue eventually led to the Constitutional Court.

Constitutional Court

In considering the case, the Constitutional Court had to first determine whether the use of the term “black man” was racist and derogatory, Mndebele explained.

The Constitutional Court found that:

  • In interpreting “black man”, the reality of South Africa’s past of institutionally entrenched racism cannot be ignored. Therefore, the starting point for interpreting the use of “black man” cannot be presumed to be from a neutral context.
  • The term “black man” was racially loaded, and hence, derogatorily subordinating.

In particular, the Constitutional Court held that:

“…racism and racial prejudices have not disappeared overnight, and they stem, as demonstrated in our history, from a misconceived view that some are superior to others. These prejudices do not only manifest themselves with regards to race but it can also be seen with reference to gender discrimination. In both instances, such prejudices are evident in the workplace where power relations have the ability ‘to create a work environment where the right to dignity of employees is impaired’”.

The Constitutional Court went on to hold that:

“Gratuitous references to race can be seen in everyday life, and although such references may indicate a disproportionate focus on race, it may be that not every reference to race is a product or a manifestation of racism or evidence of racist intent that should attract a legal sanction.

“They will, more often than not, be inappropriate and frowned upon. We need to strive towards the creation of a truly non-racial society. The late former President of the Republic of South Africa, Mr Nelson Mandela, said that ‘de racialising South African society is the new moral and political challenge that our young democracy should grapple with decisively’.

“He went on to say that ‘we need to marshal our resources in a visible campaign to combat racism – in the workplace, in our schools, in residential areas and in all aspects of our public life’.

“This Court has echoed such sentiments when it recognised that ‘South Africans of all races have the shared responsibility to find ways to end racial hatred and its outstandingly bad outward manifestations’.”

The Constitutional Court found that (the employee) had shown no remorse. He had steadfastly denied ever using the term “black man”. In denying ever using the term, the employee was dishonest. Such dishonesty weighed heavily against him when considering sanction, said Mndebele.

“In finding that dismissal was the appropriate sanction, the Constitutional Court found that by his actions he has shown that he has not made a break with the apartheid past and embraced the new democratic order where the principles of equality, justice and non-racialism reign supreme.

“The Constitutional Court found that the test to be applied in determining whether the term “black man” was racist and derogatory is whether “objectively, the words were reasonably capable of conveying to the reasonable hearer that the phrase had a racist meaning,” Mndebele said.

Read: Name changes on the cards for “offensive” streets in the Western Cape

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The new test for deciding whether an employee’s words are ‘offensive’