Lebowa Platinum Mines Ltd v Hill (1998) 19 ILJ 1112 (LAC)

Principle:

1. A disciplinary code may forbid conduct which has the effect of stirring up racial conflict. The foundation of this offence is an extension of the duty of respect owed to superiors by all employees. Such an extension involves the recognition of the interdependence of all people engaged in the enterprise and is consistent with any reasonable concept of the importance of human dignity and society.

2. There are certain principles that govern the dismissal of an employee at the insistence of a third party.

Facts:

The employee was given a verbal warning after being found guilty in a disciplinary hearing of calling a black co-worker a "bobbejaan" in contravention of the company's code against abusive language. The union voiced dissatisfaction at what it believed to be a lenient sanction and threatened industrial action unless he was dismissed. For several months alternatives were discussed but eventually the employee was dismissed when he refused to accept a transfer. The Industrial Court had found that the mere fact that a third party had demanded the dismissal did not make it fair. On appeal the Labour Appeal Court found that the dismissal was fair.

Extract from the judgment:

The question whether...the employer's ultimate decision to dismiss an employee in response to a demand therefor from a third party may be said to be a fair or unfair one, would depend on the facts of each case. In general, however, the principles set out below will be applicable....(1) The mere fact that a third party demands the dismissal of an employee would not render such dismissal unfair...(2) The demand for the employee's dismissal must usually enjoy a good and sufficient foundation... (3)...the threat by the third party to impose a sanction must be a real one. The employer should, therefore, initially assess the reality of the threat... (4) The employer should, secondly, assess the probable effect of the sanction threatened by the third party...(5) ...the mere fact that the dismissal of the employee would ensure continued smooth commercial operation is not sufficient to justify termination of employment. Something more is required. In short, that something is the objectively sound conclusion that dismissal is the only option that is fair to both the employer and the employee. (6) The employee should make reasonable endeavours to dissuade the party making the demand for the dismissal of the employee from persisting therein. (7) The employer should properly investigate and consider all the alternatives to the dismissal with a view to determining whether one or more of them constitutes a reasonable alternative to dismissal. (8) In the process of reaching a determination whether or not there is a reasonable alternative to the dismissal the employer must consult fully and properly with the employee, afford him a proper opportunity to make an input ... and properly take his representations into account before arriving at a decision. (9) It is incumbent on the employer to ensure that the employee is aware that non-acceptance by him of an identified reasonable alternative or alternatives would, or could, result in his dismissal. (10) In all its deliberations the employer must properly consider the extent of the injustice to the employee that would be occasioned by a dismissal. (11) Relevant to the consideration of injustice to the employee would be the question whether any objectively blameworthy conduct on his part gave rise to the demand for his dismissal.