It should go without saying that racist remarks and language is abhorrent, and is treated as such in labour disputes, if proved.
This was the subject matter in the Labour Court case of Juda Phonyogo Dagane v the Safety and Security Sectoral Bargaining Council & others (JR2219/14). More especially, the racist remarks were made on Facebook, showing the continued growing phenomenon of dismissal for inappropriate employee comments in social media.
In this case, the employee had been dismissed by the employer after having been found guilty of making “vitriolic racist comments on the Facebook page of the leader of the Economic Freedom Fighters (EFF), Mr Julius Sello Malema”. The employee’s alleged comments included “F… this white racist shi..! We must introduce Black apartheid. Whites have no ROOM in our heart and mind. Viva MALEMA” and “When the Black Messiah (NM) dies, we’ll teach whites some lesson. We’ll commit a genocide on them. I hate whites.”
The employee had been charged with four counts of misconduct, namely “prejudicing the discipline and efficiency of the SAPS and contravening the SAPS Regulations, Code of Conduct and Code of ethics by unfairly and openly discriminating against others (whites) on the basis of race; through blatantly discriminatory racial remarks; by threatening the future safety and security of white persons; and by making uncalled for remarks on Facebook which amounted to hate speech”.
The dismissal was held to have been fair at the arbitration hearing. At the Labour Court, the substantive fairness of the dismissal was challenged on review. The procedural fairness of the dismissal was also challenged on review, via inappropriate means in so far as is relevant, on grounds that the “charge sheet” [sic] was not adequate, as it did not set out the date, time and place where the misconduct occurred.”
In assessing the merits of the review application, with specific reference as to whether the arbitrator had applied her mind in finding that the dismissal of the employee had been substantively fair, the Labour Court judgment noted that “The (CCMA) Commissioner (had) also considered the applicant’s argument that there was no policy regarding social media within the workplace. She noted that it was common sense that people should be careful about what is said on social media as such utterings would be in the public domain. This too is a reasonable evaluation by the Commissioner and one that any reasonable decision maker could have arrived at”.
The employee argued that his Facebook account had either been hacked, or someone had, unbeknown to him, opened the Facebook account without his knowledge or permission.
In this regard, the Labour court held that “The Commissioner found on a balance of probabilities that the applicant was the author of the offensive and racist remarks; that he had posted them; that he had breached a rule of conduct within the workplace; and that his remarks on Facebook offended the Constitution as they were discriminatory and constituted hate speech. This is a reasonable conclusion in relation to the totality of evidence that was before her”.
The judgment continued that the employee “was dismissed for very serious misconduct. He, a SAPS officer, had unfairly and openly discriminated against others (whites) on the basis of race through blatant blatantly discriminatory racial remarks; by blatantly threatening the future safety and security of white people; and by making remarks on Facebook which amounted to hate speech. It hardly needs to be reiterated that the use of racist language is despicable”.
The judgment importantly added that “Whilst there has been a plethora of cases on this most unfortunate scourge of our society, Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & Others perhaps remains the locus classicus “The attitude of those who refer to, or call, Africans “Kaffirs” is an attitude that should have no place in any workplace in this country and should be rejected with absolute contempt by all those in our country – black and white – who are committed to the values of human dignity, equality and freedom that now form the foundation of our society. In this regard he courts must play their proper role and play it with conviction that must flow from the correctness of the values of human dignity, equality and freedom that they must promote and protect. The courts must deal with such matters in a manner that will “give expression to the legitimate feelings of outrage” and revulsion that reasonable members of our society -black and white – should have when acts of racism are perpetrated. It was never contended that the use of the racist epithets in question should not be visited by the sanction of dismissal. Racism is a plague and a cancer in our society which must be rooted out. The use by workers of racial insults in the workplace is anathema to sound industrial relations and a severe and degrading attack on the dignity of the employee in question. The Judge President has dealt comprehensively with this matter in his judgment and I wholeheartedly endorse everything that he says in this regard.”