The issue of race still remains a sensitive topic in South African labour law, with the labour courts and CCMA dealing with incidents on a monthly basis.
Below BusinessTech looked at some of the most recent judgements and what they mean for South African employers and employees.
Playing the ‘race card’
Most South African businesses have adopted a zero-tolerance approach to racism in the workplace, and any employee who uses racial epithets in the workplace is typically immediately dismissed.
However, since the race issue is so sensitive, it is less well-known that being accused of being racist, when this is not true, is equally deserving of sanction, says Bradley Workman-Davies, a director at Werksmans Attorneys.
Workman-Davies said that the Labour Appeal Court recently dealt with this issue in a judgement which was handed down on February 2019 and released in July 2019.
In this case the employee alleged that his supervisor had exhibited racist conduct, by having given him a negative performance rating.
Although the Labour Court originally found that any employee is entitled to bring an allegation of racist conduct, and that it then becomes the duty of the employer to investigate these allegations, the mere accusation could not, the Labour Court found, amount to misconduct.
“The Labour Appeal Court found that an employee’s subjective feelings of being subjected to racist conduct are not sufficient to warrant making a claim of racism; instead, there must be ‘persuasive objective information leading to a compelling and legitimate inference’ that racism has taken place,” said Workman-Davies.
Furthermore, the court found that:
“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. Moreover, false accusations of racism are demeaning, insulting and an attack on dignity, more so when the person attacked, by reason of a previously disadvantaged background, probably has suffered personally the pernicious effects of institutional and systemic racism.”
This case brings a much-needed balance to the race issue in the workplace; as much as employees must be protected from racism, it is equally unacceptable for allegations of racism to be levelled against innocent parties, said Davies.
“Playing the race card in this case, can lead to dismissal,” he said.
The courts have also recently dealt with a number of incidents of people publicly using overtly racist and often taboo words to describe others, said
“The constitution prohibits racism through safeguarding every person’s rights to dignity and equality. It also expressly limits the right to freedom of expression to exclude the advocacy of hatred which is based on race,” he said.
“Recent cases have emphasised that our society and law is taking a zero-tolerance policy towards racism and the use of derogatory language.”
Some of these recent cases include:
- In South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and others  JOL 37679 (CC) the court held that “’k*****’ is the worst insult that can ever be visited upon an African person in South Africa, particularly by a white person. The court said that it ‘runs against the very essence of our constitutional ethos or quintessence.”
- Pienaar said this position was extended by the court in Rustenburg Platinum Mine v SAEWA obo Bester and others 2018 (8) BCLR 951 (CC) where an employee was dismissed for calling an African colleague a ‘swartman’. “The court held that even seemingly neutral language may be offensive and constitute racism depending on the context and the intention of the speaker. The dismissal was considered fair in the circumstances.”
- This was highlighted in the case of Makhanya v St Gobain  7 BALR 720 (NBCCI), where the CCMA held that ‘boer’ carries similar derogatory connotations to the ‘k-word’ and dismissed an application for unfair dismissal that arose from an African employee’s use of the word. “It is therefore clear that all South Africans must beware that the language that they use is not discriminatory or racially-offensive to anyone,” said Pienaar.