The legal test for whether or not a workplace comment is ‘racist’

The issue of racism remains a hot topic in South African labour law, with a number of recent cases redefining the rights and responsibilities of both employees and employers.

This was expanded in a recent CCMA case which dealt with the question of whether it was fair to dismiss an employee – who compared a fellow employee to a monkey – in a manner she thought was ‘friendly and inoffensive’, according to her culture.

“Despite the subjective belief of an employee that her comparison was not racist, the test for determining whether her statement is racist is an objective assessment,” said Jacques van Wyk, director at Werksmans Attorneys.

“If the statement or comparison is found to be objectively racist, the dismissal of the employee will be substantively fair,” he said.


Facts

In the case of Ward v South African Revenue Services, the Commission for Conciliation, Mediation and Arbitration (CCMA) was tasked with assessing the fairness of Sumaya Ward’s dismissal.

She was employed as a team member in debt management by the South African Revenue Services (SARS).

On 2 March 2017, Ward compared the actions of her fellow employee to that of a monkey, due to her fellow employee’s lateness.

Ward refused to apologise, stating that she was not a racist and that an apology would be an admission that she was a racist.

Following a disciplinary enquiry, Ward was dismissed on 28 July 2017, and referred an unfair dismissal dispute to the CCMA for conciliation. The matter remained unresolved, and was referred for arbitration.

“At the arbitration, the assessment of the substantive fairness of Ward’s dismissal was the only issue to be considered,” said van Wyk.

“SARS called three witnesses to testify. The first and second witness for SARS confirmed the incident. The third witness for SARS submitted that the incident caused animosity between the employees in the department.”


Culture

Ward then testified, submitting that in her culture, people were often compared to animals in a friendly, inoffensive manner, said van Wyk.

An additional witness, Fayroes Abdulla testified that in her culture, like that of Ward’s, giving people nicknames relating to animals was common and not offensive.

The Commissioner noted that Ward’s defence amounted to her not knowing that calling a black person a monkey or comparing a black person with a monkey was racist.

Further, the Commissioner acknowledged that SARS did not dismiss an employee who wrote an e-mail where he used the words relating to following examples, of ‘monkey see, monkey do’.

“The Commissioner went on to assess whether Ward’s comment was racist, giving effect to the test that whether words uttered or comparisons made amount to racism is an objective test,” said van Wyk.

“The Commissioner held that Ward’s defence that she did not know that the comparison was racist was highly improbable, as it was common knowledge through the press that comparing black people with monkeys is racist as confirmed by the Penny Sparrow incident.

“The Commissioner held further that objectively seen, and as testified on behalf of SARS, everybody at SARS with knowledge of the incident was shocked, thus confirming that Ward’s comparison was objectively racist.”

The Commissioner thus concluded that Ward’s dismissal was fair, said van Wyk.


ReadHow to get your criminal record expunged

Latest news

Partner Content

Show comments

Follow us

Recommended

The legal test for whether or not a workplace comment is ‘racist’