A synopsis of the facts

The matter concerned a manager and trade union shop steward (the employee) at Namaqua Wines. The incident occurred when the employee was unexpectedly summoned by his superior, a white manager, to the human resources office. There, without any prior process involving the employee in his capacity as a shop steward, he witnessed the manager inform another black employee that he had been dismissed.

Believing the dismissal to be unfair and procedurally flawed, the employee became engaged in a heated debate with the manager. He repeatedly called the manager a “white racist” and accused him of firing black people. Following this confrontation, the employee was charged with, amongst other things, displaying racist behaviour and was subsequently dismissed for this reason. The dismissal was upheld by a Commission for Conciliation, Mediation and Arbitration (CCMA) commissioner and, on review, by the Labour Court, leading to the appeal to the LAC.

The law: A tale of two judicial approaches

The primary distinction between the LAC’s judgment and the decisions of the lower forums lay in the legal test they applied.

The CCMA commissioner and the Labour Court adopted an approach that effectively presumed that the employee’s words constituted a “racist tirade” and then focused their enquiry on whether he had any justification for this tirade. In so doing, they failed, according to the LAC, to first address the critical antecedent question: did the words, viewed objectively and in context, amount to racist behaviour? The Labour Court went further, stating that “labelling someone as a racist when there is no truth, cause or justification for that label, is in itself racist”. This approach, the LAC found, was incorrect and inconsistent with established precedent.

The LAC, in contrast, confirmed that the correct legal standard is the objective test laid down in Rustenburg Platinum Mine v SAEWA obo Bester (2018) 39 ILJ 1503 (CC) and approved by the Constitutional Court. This test requires an assessment of whether a reasonable, objective, and informed person, on hearing the words and considering the correct facts and the entire context, would perceive them to be racist or derogatory. The test is not based on the subjective feelings of the person to whom the remark was made, but on an objective perception of the conduct.

The LAC’s application of the law to the facts

Applying this objective test, the LAC analysed the context in which the words were uttered. It found that the employee’s outburst was not an unprovoked attack but a reaction to witnessing what he, as a shop steward, perceived to be the procedurally unfair dismissal of a fellow black employee by a white manager. His words were not an assertion of racial superiority or an attempt to humiliate the manager based on his race; rather, they were an expression of his opinion and frustration regarding what he saw as an injustice.

The court emphasised that South Africa’s history of apartheid and the power dynamics inherent in the employment relationship cannot be ignored. Given the history of white supremacy and the power imbalance between a white manager and a black general worker, the LAC found it inconceivable that the employee’s intention was to devalue the manager as a member of the white race.

The LAC’s findings

The LAC concluded that the CCMA commissioner had committed a reviewable error by failing to apply the binding Bester test, and the Labour Court had compounded this error. On a proper application of the law, the employee was not guilty of displaying racist behaviour. The LAC found that using the word “racist” is not automatically a racist act; the entire context must be assessed objectively.

Consequently, the LAC held that the dismissal was substantively unfair. The appeal was upheld, and the employer was ordered to retrospectively reinstate the employee.

Key takeaways

• Objectivity over subjectivity: An allegation of racism must be assessed objectively. The subjective feelings of the person accused of being racist are not the determining factor. The core question is how a reasonable, objective, and informed person would perceive the conduct in its full context.
• Context is important: An accusation of racism cannot be viewed in a vacuum. The events leading up to the utterance, the societal and historical context and the power dynamics between the parties must be carefully considered.
• Distinguish racism from insolence: While calling a manager a “racist” may be disrespectful or insolent, it does not automatically equate to racist behaviour. Racism requires an element of prejudice, discrimination or antagonism based on race, often rooted in a belief of racial superiority.
• Investigate allegations seriously: When an employee raises concerns about racism, it may be more prudent for an employer to investigate the underlying complaint than to immediately discipline the accuser.