“I’ve recently seen the media reports on the case where a co-worker’s reference to another worker as a “swart man” was found to be racist and derogatory. On a daily basis I am aware of persons referring to others as white females or black persons for example, often in the context of work related matters. Surely this cannot all be seen as racist and derogatory?”
In the recent judgment by our Constitutional Court, the court was called on to decide whether one employee’s reference to another as “swart man” was racist and derogatory. In making its determination, the sentiments of the late former President Nelson Mandela was echoed who said that “the new moral and political challenge that our young democracy should grapple with decisively is de-racialising the South African society”.
The brief facts of this judgment involved a Mr Bester who disrupted a meeting and aggressively demanded that the chief safety officer remove the black man’s vehicle from his parking bay failing which he would take the matter up with management. He was subsequently suspended from work, charged for making racial remarks towards a fellow employee and dismissed as a result. Mr Bester challenged the fairness of his dismissal at the CCMA which ruled in his favour and the matter went through the Labour Court all the way up to the Constitutional Court.
Important to note is that the Constitutional Court held that the context in which the words were used were important in determining whether they were racist or derogatory. Accordingly, the test to determine whether words were intended to be racist or not is an objective test that requires a positive answer to the question whether a reasonably informed person of ordinary intelligence would perceive the words as racist or belittling. The Court said that the impact of the legacy left by apartheid and the racial segregation that has left our society with a racially charged present was the context in which Mr Bester’s conduct had to be considered. Based on this, the court found that Mr Bester was fairly dismissed and that his conduct was racist and derogatory.
Not only is this judgment important in that it explains how even ordinary words can be discriminatory or racist based on context and intent, but it sets out the test to be applied to determine this. From an employer perspective, it must also be understood that an employer must protect employees from any form of racial conduct or discrimination in the workplace and employers should be sensitive to how ordinary words are used and should sensitize its employees thereto.
If one considers the continuing efforts of Government to curb racial discrimination and intolerance through for example the recent gazetting of the Prevention and Combating of Hate Crimes and Hate Speech Bill which aims to provide enforcement measures for the prosecution of hate crimes and hate speech, it is even pertinent that employers should sensitize staff and create an environment within which discriminatory, abusive and hateful conduct is not tolerated and the necessary policies and procedures are in place to deal with such conduct, should it arise.
This article was first published in Phatshoane Henney Attorneys’ July 2018 Newsletter.