South Africa has a well-documented history of inequality and discrimination based on race. In an effort to correct the past injustices, the Constitution provides protection through the Bill of Rights which specifically dictates in Section 9 that no person shall be discriminated against based on race, among other listed grounds. As a result, the Employment Equity Act was adopted in order to give effect to this fundamental human right.
It quickly became apparent that in the new dispensation, no racist remarks will be tolerated and will be dealt with swiftly and severely in the work environment. This offence has taken on such a shameful connotation in modern South Africa, that being accused of racism is similar to being accused of perpetrating a violent crime and one would potentially have to carry that label for life.
The courts have consciously taken a particularly hard stance not only on any form of racism or racist remarks, but also on those that attempt to brand others as being racist.
A Clarifying Case
In City of Cape Town v Freddie, the Labour Appeal Court (LAC) found that an employee was fairly dismissed for making repeated unsubstantiated allegations of racism against his manager.
The LAC found that the slurs made by the employee, that the manager “was even worse than Verwoerd”, constituted an offensive racial insult and is completely unacceptable in the workplace. It reflected on the history of the country and stated that Hendrik Vervoerd is known as the Architect of the Apartheid and as such has a derogatory racial connotation. The Court reiterated that the use of racist language against a person or class of persons constitutes hate speech and is prohibited in terms of the Constitution and other South African laws.
In SACWU v NCP Chlorchemthe court held that to accuse a person of racism or of displaying a racist attitude is insulting, abusive and racially offensive. The court went further to say that while employees must be protected against retribution for reporting incidents of racism to their employer or union, the employees who make the unjustified allegations of racism must also expect to be disciplined. Unjustified accusations of racism must be addressed by employers with the same fervour as racism itself. Such conduct strikes at the very heart of racial harmony in the workplace, and constitutes a serious offence.
We must always be conscious of the seriousness of racist remarks and by and large most employers know that they should view such instances with the appropriate gravity. What however comes out from the above authority is that the accuser should be equally aware that unfounded allegations of racism will be met with similar severe disciplinary consequences.
ABOUT THE AUTHOR
Charl Vollgraaff obtained his LLB degree from the Nelson Mandela Metropolitan University (NMMU) in Port Elizabeth. He then commenced practical training through Legal Education and Development (L.E.A.D) where he received a Lexis Nexis Award for Best Performance Nationally. After completing his articles at a prominent law firm in Port Elizabeth he was admitted as an Attorney in 2010. He practised as a Civil Litigation and Commercial Attorney for 6 years post admission before joining SEESA Labour in 2016 at our Port Elizabeth office. He is currently completing a Master’s degree in Labour Law.