In the case of Duncanmec (Pty) Ltd v Gaylard, J N.O. and Others, the Constitutional Court handed down judgment in an application for leave to appeal against a ruling of the Labour Court. This judgement upheld a decision of the Metal and Engineering Industries Bargaining Council (Bargaining Council) that overturned a resolution by Duncanmec (Pty) Ltd regarding the dismissal of nine employees for singing a struggle song with racial lyrics.

Between 30 April and 2 May 2013 a number of Duncanmec employees participated in an unprotected strike. While some of them only protested by refusing to work, nine employees were filmed dancing and singing songs. One of these songs was a well known struggle song with lyrics that translate to: “Climb on the rooftop and shout that my mother is rejoicing when we hit the boers”.

The employees were found guilty of:

  • Participating in unlawful strike action, and
  • Singing a racially offensive song.

They were given final warnings for the first offence and dismissal action was taken against them for the second. Duncanmec considered the conduct of the nine employees to have been so severe that it had irreparably broken the trust relationship between it, as employer, and the employees.

The arbitrator ordered the reinstatement of the dismissed workers because she found that the employment relationship had not broken down irretrievably. Her reasoning was that the employees had shown remorse and that – while the song could be offensive and cause hurt – there was a need to differentiate between singing the song and referring to someone in racially coloured language.

The Labour Court considered if the arbitrator’s finding that the dismissal was substantively unfair and concluded that reinstatement was a decision that a reasonable arbitrator could have made. It held that:

  • The strike was short-lived and not violent,
  • Duncanmec had not shown that the song was prohibited in terms of a workplace rule, and
  • The song was part of the history and struggle for workers’ rights.

As such, the arbitrator’s decision was reasonable.

The Constitutional Court remarked that persistent instances of racism in the workplace were becoming worrisome and that although the new constitutional order could hold people accountable for racist conduct, it could not by itself make people stop being racist.

The Court held that the use of the word “boer” on its own was not a racist or racially offensive word but, in this case, the use of the word in a song by the employees was inappropriate.

Duncanmec levied several accusations against the arbitrator in its application for leave to appeal. For example, that the contention that the arbitrator applied her own sense of fairness in determining if the dismissal was substantively unfair and that she had gone soft on racism. The Court evaluated the arbitrator’s reasoning and – in applying the test set out in Sidumo – held that it could not be said that she acted unreasonably as contended.

The Constitutional Court dismissed the appeal.

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