Public Newsletter
Worklaw is a subscription based labour law service developed by leading South African labour lawyers and arbitrators. Worklaw gives you all you need to manage labour law at the workplace. Go to www.worklaw.co.za
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on the dismissal of the employees of a labour broker or ‘temporary employment service’. We also look at three new cases: the first, highly significant deals with whether CCMA commissioners should ‘defer’ to the employer’s disciplinary sanction. The other two cases deal with what constitutes racism in the workplace.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
LATEST CASES
Contempt of court
On 5 October 2007 the Constitutional Court delivered judgment in what has come to be known as the ‘Rustenburg’ case. The judgment has been eagerly awaited by employers and employees. It is of special significance to the CCMA and to COSATU which had applied to intervene. The case is Sidumo v Rustenburg Platinum Mines Ltd and Others (Case CCT 85/06 Decided on 05 October 2007).
The case involved the dismissal of an employee more than seven years before this case reached the Constitutional Court. The employee was employed to patrol the mine’s high security facility where precious metals are separated from lower grade concentrate. He was dismissed for failing to apply established search procedures. He contested his dismissal and referred his dismissal dispute to the CCMA in terms of the compulsory arbitration provisions of the LRA. The commissioner found that he was guilty of misconduct but found that no dishonesty was involved and took into account his clean service record of 15 years and consequently reinstated him with three months’ compensation subject to a written warning valid for three months.
The employer applied to the Labour Court to review and set aside the award. The Labour Court dismissed the application. The Mine unsuccessfully appealed against the decision to the Labour Appeal Court. The Mine then appealed against that decision to the Supreme Court of Appeal (SCA) where it was successful. The SCA held that the dismissal was fair. The employee, in turn, applied to the Constitutional Court for leave to appeal against that decision. A key finding of the SCA was that in deciding unfair dismissal disputes commissioners of the CCMA should approach the employer’s sanction in relation to misconduct with a measure of deference because it is the employer’s function in the first place to impose a sanction.
The Constitutional Court held that the SCA decision must be overturned. The court was unanimous that, in deciding a dismissal dispute, a commissioner is not required to defer to the decision of the employer. The commissioner is, however, not given the power to consider afresh what he or she would do but to decide whether what the employer did was fair. In reaching a decision the commissioner must have regard to all relevant circumstances.
The Constitutional Court said that the standard to be applied when a decision by a commissioner on a dismissal dispute is sought to be reviewed is the following: Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?
This is an important case that is hot off the press. For that reason we have briefly mentioned it here, and it will be covered in much more detail in our next newsletter.
Racism in the workplace
'Since you people took over, it's difficult on our side.'
Test yourself: If you heard this remark, would you say that (a) it is racist and (b) it justifies dismissal?
Let’s try another test:
‘You are a racist’.
Is this a racist comment? Does it justify dismissal? You may be surprised that both these remarks resulted in dismissals that were upheld, one at CCMA arbitration and the other by the Labour Court.
In Fester and AVR Labour Outsourcing (2007) 28 ILJ 1349 (CCMA) the employee was employed as a forklift operator with a temporary employment service. After an argument with an African colleague the applicant responded 'Since you people took over, it's difficult on our side.' He was charged at a disciplinary hearing with making racist remarks and was dismissed.
At arbitration the commissioner found that the employee’s defence that the words did not constitute racism could not stand. His labelling of his colleague as 'you people' was a veiled reference to his low opinion of the group of people to which he belonged. The fact that the applicant did not use typical racist terms did not imply that his utterances did not constitute racism. The Commissioner said that racism often comes in subliminal forms where people derive a sense of superiority over others on the basis of their race. It would appear that the words were uttered in a derisive manner and reflected the applicant's racist attitude towards African people.
The commissioner found that the employer clearly viewed the incident in a serious light. Interestingly, the Commissioner followed the earlier SCA judgment in the ‘Rustenburg’ case (see above) because he said that it was a long established principle that an employer was entitled to set its own standards and that arbitrators must defer to disciplinary sanctions and only interfere if the sanction was egregious and unfair. He did not believe that the sanction was egregious and unfair, and was therefore not in a position to tamper with it.
In SACWU & Another v NCP Chlorchem (Pty)Lyd & others (2007) 28 ILJ 1308 (LC), at a team meeting an employee refused to apologize to another employee for accusations made and accused him of being a racist and demonstrating a racist attitude. This (white) employee then lodged a formal grievance against the (African) employee. The matter remained unresolved and so disciplinary action was taken against the employee. He was found guilty of 'insulting, abusive, obscene or racial language, communication or behaviour' and was dismissed. The dispute was arbitrated at the relevant bargaining council. The arbitrator concluded that 'it was common cause that [the employee] said that [Mr P] demonstrated a racist attitude and that he was a racist'. He found the dismissal to have been fair.
On review, the Labour Court had no hesitation in concluding that to accuse a person of being a racist or to say to a person that he is displaying a racist attitude is racially offensive. The court was equally satisfied that these words, objectively viewed, could be regarded as insulting and abusive. The court found further that it should be clear to any employee who makes an unfounded allegation that a fellow employee is a racist or displays a racist attitude that this will in most instances amount to serious misconduct that could lead to the employee's dismissal. The court followed earlier cases and said that racial harmony in the workplace must be of paramount importance to each and every employer and employee alike. ‘Allowing employees willy-nilly to accuse fellow employees of being racists or displaying racist attitudes must be addressed with equal fervour by employers if such allegations are baseless’.
In last month’s newsletter article we looked at the point at which it can be said that an employment relationship has irretrievably broken down. So it is of interest to see that in this case the employee complained that the arbitrator had failed to enquire whether the employer could reasonably be expected to continue to employ him. The court was of the view that it was difficult to imagine under what circumstances an employee who without just cause accuses another employee of being a racist or displaying a racist attitude, could escape dismissal.
It appears that the Labour Court found no scope for the employment relationship being restored through counseling or other forms of progressive discipline. Of course racism is a scourge and must be dealt with firmly, but in both these cases we are left with the feeling that the utterances were insensitive and rash, rather than malicious and vicious. Perhaps both dismissed employees would have grown as individuals in their awareness of racism through counseling, rather than being dismissed. We believe we need to recognize that people may struggle to find effective ways of talking to each other, to recognize differences and comment on their feelings. To dismiss a black man for calling a white man a racist, and to dismiss a white man for saying 'Since you people took over, it's difficult on our side' seems to us to be missing opportunities for workplace education and racial healing.
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Bruce Robertson
October 2007
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