Everybody should know by now that the use of racist and or derogatory language in the workplace could cost you your job. Even referring to a black person as “daai swartman”, can be racist and derogatory – as seen in a recent case. Where words like these have been used, and for it to be construed as racist or derogatory, will depend on the real facts, the context within which it was used and through an objective test on how it should be perceived.
The Labour Appeal Court (LAC) in Rustenburg Platinum Mine v SAEWA obo Meyer Bester found that referring to someone as “a black man” is merely a neutral descriptive term and not a racist remark. The Constitutional Court (CC) had a different view on the matter.
A Case Study
The facts of the case:
On 28 May 2013, Mr Bester was dismissed by Rustenburg Platinum Mine on grounds of insubordination and the making of racial remarks. The essence of the complaint was that Mr Bester had referred to a co-worker as a “swart man” [black man] and in doing so, breached a workplace rule that prohibits abusive and derogatory language.
The Mine provided specified parking bays to certain employees. The chief safety officer, Mr Ben Sedumedi, allocated a parking bay to Mr Bester. At some stage, Mr Sedumedi allocated the adjacent parking bay to Mr Solly Tlhomelang, an employee of a sub-contractor at the Mine. During the beginning of April 2013, Mr Bester found a large 4×4 vehicle similar in size to his own vehicle, parked in the adjacent parking bay. Though parking in a limited space was possible, it was difficult to reverse and he was concerned that the vehicles may be damaged in the process. Mr Bester decided to take the matter up with Mr Sedumedi in an effort to arrange for the other vehicle to be parked elsewhere. Mr Bester made repeated efforts to raise the issue with Mr Sedumedi, which included phoning and emailing him, but without success.
On 24 April 2013 an incident occurred, the details of which are not common cause. According to the version presented by the Mine, Mr Sedumedi held a safety meeting where 5 other employees, were present. The Mine’s version is that Mr Bester stormed into the meeting while it was in progress, pointed his finger at Mr Sedumedi and said, in a loud and aggressive manner, that Mr Sedumedi must “verwyder daardie swart man se voertuig” [remove that black man’s vehicle], otherwise he [Mr Bester] would take the matter up with management.
The context of the case:
According to Mr Bester there was no meeting in progress, rather Mr Sedumedi and another employee were casually discussing jogging routes. When they had finished chatting, Mr Bester raised his parking difficulty with Mr Sedumedi but he responded by saying that he would not speak to a C5 grade employee. According to Mr Bester, Mr Sedumedi said “jy wil nie langs ’n swart man stop nie…dit is jou probleem” [you don’t want to park next to a black man…that’s your problem]. Mr Bester said he told Mr Sedumedi not to turn the matter into a racial issue and that he intended taking the matter up with senior management.
The Court findings:
The LAC unfortunately misdirected itself by finding in favour of Mr Bester, on the basis of an unarticulated defense that he used the words “swart man” as a descriptor or that he did not mean to “demean” any person. He denied using the words and conceded that if he had done so, it could be a dismissible offence. There was no evidence in the record justifying a finding for Mr Bester on the basis that the LAC did.
In applying the test – whether a reasonable, objective and informed person would, on the correct facts perceive it to be racist or derogating – the LAC made a fundamental error, like the CCMA Commissioner, as it failed to identify the correct facts and relied on evidence that had not been placed before it. The LAC erred by relying on a defense which was not raised by Mr Bester.
The LAC sanitised the context in which the words were used and incorrectly applied the test to determine whether the words used were derogatory, in the context of the matter, instead of on the facts in this matter.
The CC considered the number of factors a Commissioner must consider when deciding on the fairness of a dismissal (SIDUMO).
The CC found that Mr Bester demonstrated an absolute lack of remorse for his actions and persisted with a defense of complete denial. He did not acknowledge that his conduct was racist and inappropriate. He made no attempt to apologize and failed to demonstrate a willingness to change.
The CC found that dismissal was an appropriate sanction under the circumstances.