The CCMA recently had to deal with a case where employees made a false allegation of racism against their boss.
According to Jacques van Wyk, a director at Werksmans Attorneys, the case dealt with employees who were caught playing cards outside of the businesses’ premises during their tea break.
The chief executive officer (CEO) of the business drove past the employees in his vehicle and reprimanded them for playing cards outside of the premises. The employees allege that the CEO swore at them, called them idiots and made a racial comment.
The employees then attempted to meet with the CEO to discuss the incident.
“Aggrieved by his conduct, the employees reported the incident to their shop steward at the National Union of Metalworkers of South Africa (NUMSA) who advised that they complete a grievance form to report the CEO’s conduct,” said Van Wyk.
“The grievance, which pertained to the allegation that the CEO made a racist comment, was completed, but the Numsa official never submitted it to the employer.
“The employees were called to a disciplinary hearing on 17 October 2018 for their misconduct relating to the card game. The employees were found guilty of insubordination and issued with a final written warning.”
A second disciplinary hearing was then held during which the employees were charged with deliberately supplying incorrect and/or falsified information regarding the CEO’s statements to the employees. This resulted in the employees’ dismissal, Van Wyk said.
The employees referred the dispute to the CCMA for arbitration.
They alleged that the CEO had uttered a racial comment, swore at them and called them idiots. They also alleged that some of these comments were made in Afrikaans.
The business presented evidence that these accusations had to be false because the CEO denied making the statements, said van Wyk. In addition, the business argued that the CEO was English speaking and did not understand Afrikaans.
“They submitted that it was unlikely that he would make comments in a language that he does not understand. The commissioner had asked the CEO to read some of the comments he was accused of out loud. He did so with much difficulty.”
The commissioner questioned why the employees had only brought the grievances on the same day as their disciplinary hearing.
He also held that it was highly probable that the Numsa officials had advised the employees that, if no disciplinary action was taken, no racial allegations should be made.
“They were, in essence, aiming to rely on the racial allegations as a defence to the disciplinary hearing,” said van Wyk.
“The commissioner also stated that Numsa officials are well aware of the different avenues available for relief in such circumstances, none of which were utilised by Numsa or the employees.
“The commissioner held further that on a balance of probabilities, the employees were guilty of making false allegations.”
When considering whether dismissal was justified, the commissioner looked at the gravity of the charges against them, said Van Wyk.
“He held that an accusation of racism in today’s society could cause irreparable reputational damage as well as end the CEO’s career at the employer.
“The employees showed no remorse for their conduct and as such, their dismissals were both substantively and procedurally fair.”
This case shows that the making of unsubstantiated allegations of racism against another in the workplace amounts to serious misconduct and may lead to dismissal, said Van Wyk.