In the case of Oerlikon electrodes SA vs CCMA and others (2003 9 BLLR 900) the Labour Court was asked to review an award made by a CCMA commissioner relating to the dismissal of an employee for using racist language. The arbitrator had found the dismissal to be unfair partly because the employer’s disciplinary code did not provide for dismissal on a first offence of using racist language.
The employee was consequently reinstated with retrospective effect. The Labour Court found that:
- The employee had admitted to calling a repairman of a service provider a “Dutchman” and had further admitted that this was a derogatory term
- The employer’s disciplinary code did require two warnings before dismissal could be implemented. However, the employer was not required to follow its disciplinary code rigidly
- The term “Dutchman” was racist in the sense that it connoted white supremacy.
- While this might not be seen as being as serious as terms such as “kaffir” it was still unacceptable
- The employer had the right to deviate from its disciplinary code when circumstances called for this
- The CCMA commissioner had improperly interfered with the employer’s right to impose discipline
- The dismissal was fair.
From this judgement it is clear that:
- The Courts will not allow employers to practice racism unless it is done in the name of genuine affirmative action
- Even moderate forms of racism will not be tolerated in South African workplaces
- Employees may, under certain conditions, be fired even if the employer’s disciplinary
- Falsely accusing a person of racism threatens racial harmony at the workplace
- It is racially offensive, abusive and insulting
- Such accusations therefore deserve strong discipline.
In a case decided in June 2024 as reported by News24, Standard Bank was ordered by the CCMA to pay nearly R1.7 million to a former employee who was dismissed based on unfounded allegations ranging from racism to harassment. The decision came after a senior CCMA commissioner found the investigation into the bank’s ex-global markets compliance head to be significantly flawed.
This outcome highlights the crucial importance of thorough investigation in ensuring that charges against an employee are valid and correct. As it is management that carries out such investigations and disciplinary hearings, the managers responsible need to be trained in the necessary skills.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve the necessary knowhow at times suitable to their very busy schedules.
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This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to our Labour Law Videos page or contact Ivan on [email protected]
