New case deals with employees who play the ‘race card’ to get out of trouble

The Commission for Conciliation, Mediation and Arbitration (CCMA) and South African Labour Court recently dealt with a case where an employee accused his employer of dismissing him on racial grounds.

The case dealt was first heard in front of the CCMA and the Labour Court before ultimately heading to the Labour Appeal Court.

The Appeal Court found that the employee’s accusations of tacit racism and harassment after he was dismissed, were false, upholding the dismissal on the basis of gross insubordination.

What happened?

According to Michael Yeates, director of the Employment practice at Cliffe Dekker Hofmeyr, the employee was subject to a disciplinary enquiry, where he was found guilty of 17 charges and was dismissed.

“All the charges against the employee related to gross insubordination, gross insolence and falsely making tacit accusations of racism and harassment against the employer,” said Yeates.

“The gross insubordination charges related largely to the employee’s failure to obey reasonable instructions to attend several meetings, and mainly a meeting to discuss his poor performance review by the employer.

“The employee took umbrage at receiving a low-performance score and requested an explanation for the score.”

In response, the employer tried to arrange several meetings to discuss the score and to allow the employee an opportunity to change such score, said Yeates.

“The employee, however, refused to avail himself for any such discussions and demanded the employer’s explanations be in writing.

“He further stated his intentions to raise constitutional issues with various constitutional bodies on the basis that he felt vilified as an African, under the guise of poor performance.”

He took the matter to the CCMA, which found that the grounds for dismissal were fair. The case them moved to the Labour Court.


The Labour Court was sympathetic to the employee, and found that because there was no evidence of any internal regulation or policy entitling the employer to call performance review meetings, the calling of the meeting was inappropriate and unreasonable.

The matter was sent back to the CCMA under a different commissioner for reconsideration, but the same conclusion was reached. The Labour Court then again overturned the CCMA’s findings.

The case was then taken to the Labour Appeal Court (LAC).

The LAC ultimately sided with the CCMA and the employer, finding that “the right or prerogative of management to request a meeting to discuss performance is self-evidently inherent in every employment relationship”, said Yeates.

It also found that “an employer has the authority to determine how issues of performance should be addressed”.

“The LAC held that an employer has the authority to determine how issues of performance should be addressed and that it is not open to an employee to dictate how the employer should deal with the issues,” said Yeates.

“The charge of falsely making tacit accusations of racism was based on an email in relation to arranging the meeting to discuss the employee’s poor performance review.

“In the email, the employee implied that the employer was racist by stating that ‘Africans are being vilified’ under the coded name of poor performance”.


The Labour Court found that the employee was entitled to raise the matter and even take it to the Parliamentary Portfolio Committee.

However, the LAC disagreed and held that employees who allege tacit racism should do so only on the basis of ‘persuasive objective information leading to a compelling and legitimate inference, and in accordance with grievance procedures established for that purpose’, said Yeates.

“Unfounded allegations of racism against a superior by a subordinate subjected to disciplinary action or performance assessment, referred to colloquially as ‘playing the race card’, can illegitimately undermine the authority of the superior and damage harmonious relations in the workplace.”

“The LAC concluded that the employee’s actions, besides being insubordinate, reveal a poor level of judgment which supports the conclusion that the employee was not suited to the post he occupied”.

This case illustrates the LAC’s strict stance on employees making false accusations of racism to get away with insubordination and trying to dictate performance reviews, said Yeates.

“It is clear from this judgment that such behaviour in the workplace will not be condoned under the guise of serious societal and workplace issues.”

Read: Can workers who are too afraid to come to work because of strikes be fired?

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New case deals with employees who play the ‘race card’ to get out of trouble