Rustenburg Platinum Mine v SAEWA obo Bester and Others (CCT127/17)  ZACC 13 (17 May 2018)
- Racism in the workplace cannot be tolerated. Employees may not act in a manner designed to destroy harmonious relations at work.
- In judging whether words used are racist, the context within which the comments were made is crucial. The test for assessing the impact of these words is whether a reasonable, objective and informed person would perceive the comment to be derogatory.
- An indication of remorse and the willingness to change, may be significant in deciding on the sanction to be imposed in cases linked to racism and other attitudinal offences.
- An adjudicator (be that a chairperson of a hearing, an arbitrator or a judge) can't invent a defence which is not substantiated by the evidence led at the hearing.
The employee, a senior training officer with 5 years' service, was allocated a parking bay by the chief safety officer in accordance with the Company's systems. An adjacent parking bay was allocated to a black employee of a sub contractor at the mine who he did not know. During April 2013 the employee found a large 4x4 vehicle, similar in size to his own vehicle, parked in the adjacent bay. Though parking in the limited space was possible, it was difficult to reverse and the employee was concerned that the vehicles would be damaged in the process. The employee made repeated efforts to raise the issue with the chief safety officer, which included phoning and e-mailing him, but without success.
On 24 April an incident occurred in the chief safety officer's office, the details of which are disputed. Management's witnesses claimed that the senior training officer stormed into a safety meeting attended by the chief safety officer and 5 other employees, pointed his finger at the chief safety officer and said in a loud and aggressive manner, that he must "verwyder daardie swart man se voertuig" ("remove that black man's vehicle"), otherwise the matter would be taken up with management.
The training officer denied that he had referred to the safety officer as a "swart man". His version was that there was no meeting in progress, just a social conversation taking place, and when he raised his parking difficulties once they had finished chatting, the safety officer said "jy wil nie langs 'n swart man stop nie...dit is jou probleem" ("you do not want to park next to a black man...this is your problem"). The training officer said he told the safety officer not to turn the matter into a racial issue and that he would take the matter up with senior management.
Arising from this incident, the training officer was dismissed for insubordination for disrupting a safety meeting and for making racial remarks by referring to a fellow employee as a "swart man". The Company had, shortly before this incident, issued a memorandum to all employees warning against the use of derogatory or abusive language, and that disciplinary action would result from any such conduct.
The CCMA held that the employee's dismissal was unfair. The commissioner, whilst finding that the employee did refer to the other employee as a "swart man", could not see how a phrase referring to a physical attribute in order to identify a person he did not know, could be classified as a racial remark. The employee was reinstated and awarded R191 834 backpay.
The Labour Court overturned the arbitrator's award, finding on the facts that there was no conceivable reason why race might justifiably serve as an identifier in this case. The LC said the dismissal was fair.
The matter journeyed on to the Labour Appeal Court, which in turn disagreed with the LC. The LAC held that the LC erroneously adopted a subjective test in determining the effect of the words "swart man" on the persons present at the meeting - the proper test was to ask was whether, in the opinion of a reasonable person possessed of all facts, the use of the word(s) 'swart man' in this context was derogatory and racist. The LAC said that the term "swart man" is prima facie a neutral phrase that requires context to acquire a derogatory meaning. The case accordingly turned on whether the context in this instance transformed a neutral term into a derogatory one.
The LAC took the view that the training officer did not know the owner of the other vehicle and had no reason to denigrate him. The LAC felt it could not be concluded from the proven facts that the training officer had used these words in a derogatory and racist manner - it was equally plausible that the words has been used in a descriptive context, merely to describe the person he was referring to.
The ConCourt adopted an approach that had not been considered by the lower courts: it highlighted that the employee's defence at the internal hearing and at arbitration had been that he never uttered the words in question, and not that they were intended in a neutral, descriptive context to describe the person he was referring to. Accordingly, the arbitrator (and in turn the LAC) could not 'invent' a defence that had not been used by the employee. The ConCourt pointed to the fact that no evidence had been led to support the view that the words were used in a neutral, descriptive context - this defence, on which the commissioner hinged the entire reasoning for his finding, was not based on any evidence before him.
The ConCourt was clear that racism in the workplace cannot be tolerated, and that the employee had shown no remorse for his actions. His defence had continued to be a complete denial of ever having uttered the words in question. The ConCourt overturned the LAC's decision, which meant that the LC order confirming the fairness of the employee's dismissal was confirmed.
It is clear from the ConCourt's decision that in judging whether words used are racist, the context within which the comments were made is crucial. And the test for assessing the impact of these words is an objective one - whether a reasonable, objective and informed person would on the correct facts perceive the comment to be derogatory.
This case highlights the significance of remorse and the willingness to change, in deciding on the sanction to be imposed in cases linked to racism and perhaps other attitudinal offences. The fact that an employee who is guilty of racist conduct apologised, admitted wrongdoing and demonstrated a willingness to take part in programmes aimed at attitudinal change, may be a relevant factor in determining whether dismissal was an appropriate sanction.
Linked to the employee's apparent unwillingness to change, the ConCourt felt that the employee's persistence in sticking to a dishonest defence (that he never used the words in question), weighed heavily against him when considering sanction.
This judgment again makes it absolutely clear that racism in the workplace cannot be tolerated. Employees may not act in a manner designed to destroy harmonious working relations with their employer or colleagues. They owe a duty of good faith to their employers, which includes the obligation to further their employer's business interests. In making racist comments, the actions of the employee may negatively affect the employer's business and relationships at the workplace.
Extract from the judgment:
 It was accepted by both parties (the applicant and first respondent) that the use of the words "swart man", per se, is not racist and that the context within which the words were used would dictate whether they were used in a racist or derogatory manner. It was also accepted that the test to determine whether the use of the words is racist is objective - whether a reasonable, objective and informed person, on hearing the words, would perceive them to be racist or derogatory. This is in accordance with the test for whether a statement is defamatory, as enunciated in Sindani:
"The test to be applied is an objective one, namely what meaning the reasonable reader of ordinary intelligence would attribute to the words read in the context of the article as a whole. In applying this test it must be accepted that the reasonable reader will not take account only of what the words expressly say but also what they imply.".........................
 The Labour Appeal Court unfortunately misdirected itself by finding in favour of Mr Bester, on the basis of an unarticulated defence not supported by the evidence. It was never Mr Bester's defence that he used the words "swart man" as a descriptor or that he did not mean to "demean" any person. He denied using the words and conceded that if he had done so, it could be a dismissible offence. There was no evidence in the record justifying a finding for Mr Bester on the basis that the Labour Appeal Court did.
 In applying the test, namely, whether a reasonable, objective and informed person would, on the correct facts perceive it to be racist or derogatory, the Labour Appeal Court made a fundamental error, like the commissioner, as it failed to identify the correct facts and relied on evidence that had not been placed before it. The Labour Appeal Court erred by relying on a defence which was not raised by Mr Bester.
 The Labour Appeal Court's starting point that phrases are presumptively neutral fails to recognise the impact of the legacy of apartheid and racial segregation that has left us with a racially charged present. This approach holds the danger that the dominant, racist view of the past - of what is neutral, normal and acceptable - might be used as the starting point in the objective enquiry without recognising that the root of this view skews such enquiry. It cannot be correct to ignore the reality of our past of institutionally entrenched racism and begin an enquiry into whether or not a statement is racist and derogatory from a presumption that the context is neutral - our societal and historical context dictates the contrary. In this sense, the Labour Appeal Court's decision sanitised the context in which the phrase "swart man" was used, assuming that it would be neutral without considering how, as a starting point, one may consider the use of racial descriptors in a post-apartheid South Africa.
 The Labour Appeal Court, by sanitising the context in which the words were used, incorrectly applied the test to determine whether the words used are derogatory, in the context of this matter, to the facts in this matter. The Labour Appeal Court, as well as the commissioner, failed to approach the dispute in an impartial manner taking into account the "totality of circumstances". Not only was "swart man" as used here racially loaded, and hence derogatorily subordinating, but it was unreasonable to conclude otherwise. It was unreasonable for the commissioner, within this context, to find that using "swart man" was racially innocuous.
 We are dealing here with racism in the workplace. Our courts have made it clear, and rightly so, that racism in the workplace cannot be tolerated. Employees may not act in a manner designed to destroy harmonious working relations with their employer or colleagues. They owe a duty of good faith to their employers which duty includes the obligation to further their employer's business interests. In making racist comments in the public domain, the actions of the employee may foreseeably negatively affect the business of his employer or the working relationship between him and his employer or colleagues. The chairperson of the disciplinary hearing was alive to this. This is evident from his statement that "[d]ismissal will be imposed for a first offence if the circumstances so warrant it and the employee's behaviour destroy[s]; the employment relationship".
 Mr Bester has demonstrated an absolute lack of remorse for his actions and persisted with a defence of a complete denial. He did not acknowledge that his conduct was racist and inappropriate. He made no attempt to apologise. This Court has previously stated that the fact that an employee who is guilty of racist conduct apologised, admitted wrongdoing and demonstrated a willingness "to take part in whatever programme could be designed to help him embrace the values of our Constitution, especially equality, non-racialism and human dignity" may be a relevant factor in determining whether dismissal was an appropriate sanction. As mentioned, Mr Bester failed to demonstrate a willingness to change. Instead, he resorted to a vicious attack on the witnesses who testified on behalf of the applicant during the disciplinary hearing................
 The fact that Mr Bester was dishonest in denying making the statement weighs heavily against him when considering sanction. In Sidumo, this Court stated that "[t]he absence of dishonesty is a significant factor in favour of the application of progressive discipline rather than dismissal"...............
 Mr Bester has not learnt to conduct himself in a manner that respects the dignity of his black co-workers. By his actions he has shown that he has not made a break with the apartheid past and embraced the new democratic order where the principles of equality, justice and non-racialism reign supreme.
 This Court is satisfied that dismissal was an appropriate sanction under the circumstances.