Racism and racial abuse in the workplace cannot and should not be tolerated

2016-03-23 19:08

Introduction

Racism has been pretty much of late been fuelling debate and discussion with the media carrying out a nationwide campaign “Racism stops with me” for good measure. These are salutary endeavours of a problem that also seems endemic in the workplace. Its not enough. Now that our courts have spoken out against it, lets examine the issue of racism in the workplace.

Recently the Labour Appeal Court in City of Cape Town v Freddie and Others [2016] ZALAC 8 handed down a clear judgment on 15 March 2016 passing, yet, the strongest message to date. That racism and racial abuse in the workplace being an anathema, cannot and should be tolerated was central in its judgment.

Its regretted that the media did not publicise this judgment.

Background

In that case, Freddie was charged with:

  1. misconducted in that between 25 February 2011 and 15 April 2011, in various email communications and in a one-on-one situation he was grossly insubordinate/insubordinate in that he acted in an insolent, provocative, aggressive and intimidatory manner towards his management team.
  2. misconducted  in that on or about 16 March 2011 at approximately 12:01 pm he behaved in an unacceptable manner when he abruptly ended the phone call with his colleague by “putting the phone down in his ear whilst he was still talking.”
  3. committing serious misconduct on or about 02 June 2011 when he e-mailed his line manager ( aMr. I Robson), a derogatory, insolent, racist, provocative and offensive e-mail.

He was found guilty on counts 1 and 3 and acquitted on count 2 and dismissed .After an unsuccessful internal appeal, he referred a dispute of unfair dismissal to the bargaining council for conciliation. After the conciliation process failed, the matter proceeded to arbitration before the arbitrator who had to determine whether Freddie’s dismissal was substantively fair, in the sense of whether the sanction of dismissal was the appropriate remedy in the circumstances of this case. The aspect of procedural fairness was not in dispute.

The Labour Appeal Court found that the dismissal of Freddie was substantially fair.

The gravamen of the misconduct for which led to his dismissal after a disciplinary hearing was founded in a raft of emails exchanged between Freddie and one Robinson, his superior and the tenor as well as content of these emails were peppered with racial epithets and innuendo.

In just one email to Robinson he wrote

“ You can fool everybody in that office, pretending as if you care about black people, I have been with you for a long time Irwin, I know you back and front, you are a racist of the highest order, the way I look at you are even more than Verwoerd. I was born at the height of apartheid, you cannot fool me about racism. You are a racist Irwin, if you have never been told who you are, today you are getting it from me. I am telling you your true colours and I am wondering as to how did you chose to be an advocate, while at the same time being a party to oppression by the imperialists, it’s just contradictions, maybe you should attempt to practice your profession, so that you know exactly what it means. (my emphasis) (Bold and underline for emphasis)

These racist innuendos were found to be without any basis or support. The facts support the contention that the relationship between Freddie and his superiors had reach a level of toxicity that made continued employment relationship intolerable.

Our courts have consistently expressed strong views against racism in the workplace. For instance in another earlier case the Labour Appeal Court in

Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others, [2002] 6 BLLR 493 (LAC)  stated the following (Per Zondo JP):

‘Within the context of labour and employment disputes this Court and the Labour Court will deal with acts of racism very firmly. This will show not only this Court’s and the Labour Court’s absolute rejection of racism but it will also show our revulsion at acts of racism in general and acts of racism in the workplace particularly. This approach will also contribute to the fight for the elimination of racism in general and racism in the workplace in particular and will help to promote the constitutional values which form the foundation of our society.’(at para 38)

“Racism (was) a plague” declared Nicholson JA, as well as “ a cancer in our society which (had to) be rooted out”. He correctly went on to say that when workers use racial insults in the workplace it constituted an “ anathema to sound industrial relations”as well as “a severe and degrading attack on the dignity of the employee in question.”(at para 63).

Like I said there was no basis or evidence to gainsay the racist reference that Freddie had made and therefore the reference to Verwoerd constituted a slur. Verwoerd’s is notoriously known, from the perspective of the Black majority in South Africa and it is common knowledge that during the apartheid era, the willy-nilly use of a variety of offensive racial slurs by certain racist white supremacists against Black people (whether it be African, Coloured or Indian) in this country was the order of the day; and this was done without impunity. No right minded person could countenance that.

The Court therefore  said that given the foregoing, one would expect all right minded people to distance themselves from such a painful reference. Therefore,in the court’s estimation for Freddie to describe Robson, without any justifiable cause, as being ‘“even [worse] than Verwoerd” was an offensive racial insult, absolutely unacceptable for any employee to use against any other employee in the workplace, irrespective of whether the accuser is white or black.’ The Court warned that in any case “it ought to be recalled that the use of racist language against a person or class of persons also constituted hate speech (Section 16(2)(c) of the Constitution of the Republic of South Africa, 1996. See also section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 against hate speech.) and was prohibited and outlawed under the Constitution and the law.

Its worth while for those interested in how racism in the workplace has to be eradicated to read and study the judgment that is easily accessible from the website www.saflii.org.za.

Yes RACISM STOPS WITH ME, AND THAT INCLUDES YOU READING THIS.

Saber Ahmed Jazbhay

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