The Bill of Rights – as contained in the Constitution as well as the Employment Equity Act (EEA) – prohibit discrimination by one South African, or person situated in South Africa, against another in the same situation unless this discrimination is for justifiable reasons. Racial remarks falls under the category of discrimination.
Unfortunately, post-apartheid South Africa is still quite racially charged. Owing to this fact, people may construe innocent utterings as racial remarks. The case of SAEWA obo Bester v Rustenburg Platinum Mine and Another (JA45/16) [2017] ZALAC 23 (3 May 2017) shows this.
The facts of the racial remarks case
• A White Male employee – Bester – was dismissed, after having been found guilty of insubordination, when he referred to a Black Male employee as a swartman. The latter reference was deemed to be a racial remark.
• The dismissed employee appealed said dismissal. After he was unsuccessful, he referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).
• The CCMA Commission found that the dismissal was procedurally and substantively unfair. The company – Rustenburg Platinum Mines (RPM) – was ordered to reinstate Mr Bester and award him back-pay.
• The company appealed this decision to the Labour Court who overturned the Commissioner’s Award. It substituted this ruling with a decision that the dismissal was both procedurally and substantively fair.
• The Labour Appeal Court (LAC), however, decided to overturn the LC’s decision and awarded costs.
The lesson to be learned from this case is that should an allegation of racial remarks be levelled in your company, make sure that you properly investigate all the evidence before making a dismissal decision. If the incorrect decision is made, the Courts will be very quick to correct this and remedy anything to do with racial remarks allegations.
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