LABOUR COURT CASE HIGHLIGHTS THAT OBJECTIVITY AND CONTEXT ARE KEY
SAEWA on behalf of Meyer Bester and Rustenburg Platinum Mine
By Stephen Khola, National Labour Relations and HR Director, ECA(SA)
An employee at Rustenburg Platinum Mine, Meyer Bester, was dismissed by his employer, for referring to a co-worker as a “swart man”.
Was this procedurally and substantively fair or unfair?
Let’s look at the circumstances:
Bester had arrived at work one day to find a large vehicle parked in the parking bay adjacent to his own, which made parking difficult for Bester, who also had a large car. Bester then, on several occasions, had requested that the parking bays be reallocated so that the driver of the vehicle could park elsewhere, without any success.
Ultimately, he walked into a colleague’s office and requested that the “swart man” move his vehicle.
The mine has a policy, which reads:
‘It has come to management’s attention that some employees use abusive language with fellow employees. It was also raised with management that some senior management are swearing and shouting at their subordinates. This practice is not in accordance with our values and does not demonstrate care and respect towards each other and will therefore not be tolerated at Thembelani Mine. Disciplinary action will be taken against anyone who uses abusive language towards another person on Thembelani Mine. Let us refrain from using derogatory language against each other and strive to work together harmoniously as One Team.’
Bester was charged with the offence of making a racial remark when he referred to a fellow employee, Solly Tlhomelang, as a “swart man” when he requested that the “swart man” move his vehicle. He was found guilty of insubordination and making racial remarks to a fellow employee, and he was subsequently dismissed. Bester declared an unfair dismissal dispute at the CCMA and the CCMA found his dismissal to have been procedurally and substantively unfair and ordered reinstatement with back pay.
Rustenburg Platinum Mines took the arbitration award on review and the Labour Court agreed with the mine that the CCMA was incorrect in finding the dismissal to have been unfair. It found that Bester had no reason to use race as an identifier of the person whose vehicle he wanted removed. The court was also of the view that the commissioner had failed to appreciate the mine’s zero-tolerance to the use of derogatory and abusive language. The court set aside the arbitration award and declared that the employee’s dismissal was procedurally and substantively fair.
Labour Appeal Court
The employee, represented by SAEWA, then took the matter to the Labour Appeal Court. The court indicated that the test to determine whether the use of the term “swart man” by Bester was derogatory or abusive, was an objective one. The employer had to prove that the language used by the employee was objectively derogatory or racist, meaning that any objective and informed person would regard it as such.
This is not a subjective test about how a person to whom the remark was made understood it or felt about it. Once it is established as fact that a person has made a derogatory or racist remark, it is then the employee who must prove that there was a justifiable reason for making the remark and further that such remark was not intended to demean.
The Labour Appeal Court accepted that Bester had referred to Tlhomelang as a “swart man”. It concluded that it was necessary to look at the context in which the term was used to determine whether it was used in a derogatory fashion or not. The court concluded that the evidence led had shown that Bester’s dispute had nothing to do with the race of the person who had parked next to him as Bester had not objected to parking next to a black man. He had merely used race as a descriptor to identify the driver of a vehicle whose name he did not know. It found the Labour Court to have incorrectly used a subjective test in concluding that the remarks made by Bester were racist because two of his black colleagues had felt offended by them. The court further ruled that race descriptors such as ‘black man’ and ‘black woman’ are neutral and only when they are used in a scornful or derogatory context should their use be condemned as racist.
The court then ordered that the dismissal of Bester was procedurally and substantively unfair.
It is important for employees to realise that their personal perceptions of the utterances of other employees – particularly those of a different racial group – which offend them, would not necessarily always be seen as offensive by the courts.
Objectivity and context are the key determinants of whether the utterances are derogatory or not.
National Labour Relations & HR Director
+27 (0)11 392 0000