New South African court ruling reveals when calling someone ‘racist’ is a fair reason for dismissal

A recent Labour Appeal Court (LAC) case revealed that calling a manager a “racist” is not automatically dismissible misconduct, as such statements must be assessed objectively in context.

This was explained by employment law experts at Cliffe Dekker Hofmeyr, Aadil Patel, Nadeem Mahomed and Makgane Mahlabana.

The issue arose in the recent judgment of Commercial Stevedoring Agricultural and Allied Workers Union obo Vuyani Qomoyi v CCMA and Others. In this case, the LAC provided clarity on the complex issue of workplace racial accusations.

The LAC unpacked the central legal question: Under what circumstances does an employee, in response to a perceived injustice, calling a manager a “white racist” constitute dismissible misconduct?

“The judgment establishes that context, power dynamics, and societal history are paramount, and that such an utterance is not, in and of itself, racist behaviour,” Patel, Mahomed and Mahlabana said.

The matter concerned a white manager and a black employee, who served as a trade union shop steward, at Namaqua Wines. The incident occurred when the employee was unexpectedly summoned by his superior to the human resources office.

There, without any prior process involving the employee in his capacity as a shop steward, he witnessed the manager inform another black employee that he had been dismissed.

Believing the dismissal to be unfair and procedurally flawed, the employee became engaged in a heated debate with the manager. He repeatedly called the manager a “white racist” and accused him of firing black people.

Following this confrontation, the employee was charged with, amongst other things, displaying racist behaviour and was subsequently dismissed for this reason.

The dismissal was upheld by a Commission for Conciliation, Mediation and Arbitration (CCMA) commissioner and, on review, by the Labour Court, leading to the appeal to the LAC.

The Labour Court and the Labour Appeal Court take two different approaches

Patel, Mahomed and Mahlabana explained that the primary distinction between the LAC’s judgment and the decisions of the lower forums lay in the legal test they applied.

The CCMA commissioner and the Labour Court adopted an approach that effectively presumed that the employee’s words constituted a “racist tirade”.

As a result, they subsequently focused their enquiry on whether the employee had any justification for this tirade.

“In so doing, they failed, according to the LAC, to first address the critical antecedent question: Did the words, viewed objectively and in context, amount to racist behaviour?” they explained.

“The Labour Court went further, stating that ‘labelling someone as a racist when there is no truth, cause or justification for that label, is in itself racist’.”

However, Patel, Mahomed and Mahlabana said the LAC found that this approach was incorrect and inconsistent with established precedent.

The LAC, in contrast, confirmed that the correct legal standard is the objective test laid down in the 2018 case of Rustenburg Platinum Mine v SAEWA obo Bester and approved by the Constitutional Court.

This test requires an assessment of whether a reasonable, objective, and informed person, on hearing the words and considering the relevant facts and the entire context, would perceive them as racist or derogatory.

“The test is not based on the subjective feelings of the person to whom the remark was made, but on an objective perception of the conduct,” Patel, Mahomed and Mahlabana said.

The Labour Appeal Court’s ruling

Applying this objective test, the LAC analysed the context in which the words were uttered, Patel, Mahomed and Mahlabana explained.

“It found that the employee’s outburst was not an unprovoked attack but a reaction to witnessing what he, as a shop steward, perceived to be the procedurally unfair dismissal of a fellow black employee by a white manager,” they said.

“His words were not an assertion of racial superiority or an attempt to humiliate the manager based on his race. Rather, they were an expression of his opinion and frustration regarding what he saw as an injustice.”

The court stressed that South Africa’s history of apartheid and the power dynamics inherent in the employment relationship cannot be ignored.

It considered the history of white supremacy and the power imbalance between a white manager and a black general worker.

As such, the LAC found it inconceivable that the employee’s intention was to devalue the manager as a member of the white race, Patel, Mahomed and Mahlabana said.

“The LAC concluded that the CCMA commissioner had committed a reviewable error by failing to apply the binding Bester test, and the Labour Court had compounded this error,” they said.

“On a proper application of the law, the employee was not guilty of displaying racist behaviour. The LAC found that using the word ‘racist’ is not automatically a racist act. The entire context must be assessed objectively.”

Consequently, the LAC held that the dismissal was substantively unfair. The appeal was upheld, and the employer was ordered to reinstate the employee with retrospective effect.

Patel, Mahomed and Mahlabana explained that a few key takeaways emerge from this case. First, an allegation of racism must be assessed objectively.

“The subjective feelings of the person accused of being racist are not the determining factor. The core question is how a reasonable, objective, and informed person would perceive the conduct in its full context,” they said.

This case makes it clear that context is essential, and an accusation of racism cannot be viewed in a vacuum.

“The events leading up to the utterance, the societal and historical context and the power dynamics between the parties must be carefully considered,” they said.

According to Patel, Mahomed and Mahlabana, the judgment also reveals that racism must be distinguished from insolence.

“While calling a manager a ‘racist’ may be disrespectful or insolent, it does not automatically equate to racist behaviour,” they said.

“Racism requires an element of prejudice, discrimination or antagonism based on race, often rooted in a belief of racial superiority.”

Finally, they said this case underscores the importance of thoroughly investigating allegations of racism in the workplace.

“When an employee raises concerns about racism, it may be more prudent for an employer to investigate the underlying complaint than to immediately discipline the accuser,” they said.