29 July 2019 by and Employment Alert

No more “Boers” allowed in the workplace!?

Racial tension and animosity are amongst the many social ills that form part of South Africa’s apartheid legacy. Eradicating these problems is made no easier by people’s prejudiced beliefs that often manifest in the use of derogatory, offensive and racist language. In recent times, there have been numerous incidents of people publicly using overtly racist and often taboo words to describe others. These incidents have been met by public outrage and increasingly severe consequences.

The Constitution prohibits racism through safeguarding every person’s rights to dignity and equality. It also expressly limits the right to freedom of expression to exclude the advocacy of hatred which is based on race. This legal stance is mirrored in other legislation such as the Employment Equity Act, No 55 of 1998 and the Labour Relations Act, No 66 of 1995, both of which specifically address racism in the workplace.

People who publicly use derogatory words and other expressions of racism may face legal sanctions including private claims for defamation as well as criminal charges for crimen iniuria. Such behaviour is also a certain way of incurring severe disciplinary action at the workplace.

Recent cases have emphasised that our society and law is taking a zero-tolerance policy towards racism and the use of derogatory language. The Constitutional Court has approached this issue with the utmost seriousness. In South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and others [2017] JOL 37679 (CC), the court held that “’k*****’ is the worst insult that can ever be visited upon an African person in South Africa, particularly by a white person. It runs against the very essence of our constitutional ethos or quintessence.”

In recognition of this, the court limited the amount of compensation owed to the offending employee whose dismissal was procedurally unfair. This position was extended by the court in Rustenburg Platinum Mine v SAEWA obo Bester and others 2018 (8) BCLR 951 (CC) where an employee was dismissed for calling an African colleague a “swartman.” The court held that even seemingly neutral language may be offensive and constitute racism depending on the context and the intention of the speaker. The dismissal was considered fair in the circumstances.

It is also becoming clear that nobody is immune to the legal and employment-related consequences of racism. Recently, in Makhanya v St Gobain [2019] 7 BALR 720 (NBCCI), the CCMA held that “boer” carries similar derogatory connotations to the “k-word” and dismissed an application for unfair dismissal that arose from an African employee’s use of the word.

It is therefore clear that all South Africans must beware that the language that they use is not discriminatory or racially-offensive to anyone. Employers would be prudent to alert their employees to the severe consequences that may follow the use of derogatory language both in and out of the workplace.

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