Racially charged language in the workplace: Legal ping pong



​​Racially charged language in the workplace: Legal ping pong

The use of words, or a phrase, which on the face of them or it are innocuous and hence not racist, formed the subject matter of an important decision of the Constitutional Court, handed down on 17 May 2018, in the matter of Rustenburg Platinum Mine v SAEWA obo Meyer Bester and 2 others. The Constitutional Court had not previously dealt with this particular topic. The words were uttered in the workplace, and the judgment is accordingly of interest to all labour lawyers and employers. Of further interest is the fact that the dispute was ventilated before five successive decision makers, each of whom overturned its immediate predecessor.

In May 2013 Rustenburg Platinum Mines dismissed Mr Meyer Bester, a senior training officer, on grounds of insubordination and the making of a "racial remark". The racial remark was allegedly made after Mr Bester stormed into a safety meeting and allegedly said, loudly and aggressively, that the chief safety officer of the mine must "verwyder daardie swart man se voertuig" ("remove that black man's vehicle"), referring to a vehicle parked in the bay next to his by Mr Tlhomelang, an employee of a sub-contractor of the mine. The insubordination charge was for disrupting the safety meeting at which the alleged remark was made. Mr Bester denied ever having made the remark.

Mr Bester referred an unfair dismissal dispute to the CCMA, which found his dismissal to be both substantively and procedurally unfair. The commissioner's reasoning regarding the use of the term 'swart man' by Mr Bester was that because Mr Bester and Mr Tlhomelang did not know each other, the term was used to describe a physical attribute, and was not a racial remark. He ordered the reinstatement of Mr Bester. The commissioner overlooked the fact that Mr Bester denied the use of the words.

The mine took the matter on review to the Labour Court. It held that Mr Bester's reference to Mr Tlhomelang as a "swart man" was derogatory and racist, constituted serious misconduct, and merited dismissal. It reviewed and set aside the commissioner's finding, and upheld Mr Bester's dismissal.

Mr Bester appealed the decision of the Labour Court to the Labour Appeal Court. It reasoned that the use of the words "swart man" must be looked at in the context of which they were uttered to determine whether they were derogatory or abusive, and that the test to be applied to determine whether the use of the words was derogatory or abusive was an objective test. The Labour Appeal Court held that the Labour Court had erred in reviewing and setting aside the award of the commissioner, because its finding that the use of the words "swart man" in context were derogatory and racist was not the only plausible inference to be drawn from the proven facts, and that the inference the words were used to merely describe Mr Tlhomelang was equally plausible.

The mine appealed the Labour Appeal Court's decision to the Constitutional Court, which handed down its unanimous finding on 17 May 2018. Theron J, who wrote the unanimous judgment, dealt with Mr Bester's actual evidence before the CCMA. He denied making the remark, although four witnesses for the mine confirmed the remark. Mr Bester agreed that using derogatory language would be detrimental to a person in his position and would merit dismissal. Accordingly, the defence that the term "swart man' was not used in a derogatory or racist manner was neither raised nor relied upon by Mr Bester. This defence, on which the commissioner hinged his entire reasoning for his finding, was not based on any evidence before him. The Labour Appeal Court compounded this fundamental error in the CCMA. As Theron J put it: " The Labour Appeal Court unfortunately misdirected itself by finding in favour of Mr Bester, on the basis of an unarticulated defence not supported by the evidence. It was never Mr Bester’s defence 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 Labour Appeal Court did. In applying the test, namely, whether a reasonable, objective and informed person would, on the correct facts perceive it to be racist or derogatory, the Labour Appeal Court made a fundamental error, like the commissioner, as it failed to identify the correct facts and relied on evidence that had not been placed before it. The Labour Appeal Court erred by relying on a defence which was not raised by Mr Bester."

Theron J then dealt with the central issue before the court i.e. when and how do words or phrases that on the face of them are neutral acquire racist and derogatory overtones. She held that the Labour Appeal Court had failed to recognise the impact of the legacy of apartheid and racial segregation "that has left us with a racially charged present." The Labour Appeal Court's decision had sanitised the context in which the phrase "swart man" was used, and should have found that it was unreasonable for the commissioner, within such context, to find that using the words "swart man" was racially innocuous. Furthermore, the test it applied was too strict. The test was not whether the witnesses were correct in the context of the statement to have understood it as being racist, the test was rather whether, objectively, the words were reasonably capable of conveying to the reasonable hearer that the phrase had a racist meaning. The commissioner erred in finding that the words were used to identify, and not to denigrate, the person whose vehicle was parked next to Mr Bester's vehicle. The commissioner failed to have regard to the evidence before him, and failed in particular to appreciate the context in which the words were uttered. Both the mine and Mr Bester had agreed during the arbitration proceedings that such language would be detrimental and could warrant dismissal. Accordingly, the commissioner's award fell to be reviewed and set aside, and the Labour Court had been correct in doing so. As regards an appropriate sanction, the Constitutional Court emphasised that racism in the workplace cannot be tolerated, and that dismissal was an appropriate sanction. Since the case raised important issues which had not been pronounced upon by the Constitutional Court previously, no order as to costs was made.'

On a related note - we will shortly be sending you an invitation to a client seminar dealing with sexual harassment and racial discrimination in the workplace, which will be held on the 13th of June 2018 at our offices. Please look out for this.

This alert was drafted by Nic​k Robb.

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