BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888 7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za
Despite South Africa’s employment equity legislation, the biases and discrimination that characterised the ‘old South Africa’ still exist in the hearts and minds of many people. Such unfair discrimination could include, but is not limited to, discrimination on arbitrary or subjective grounds such as race, gender, family responsibility, religion, age, disability, opinion, and trade union affiliation.
Where discrimination takes place for purposes of promoting affirmative action, such discrimination would not normally be unfair. However, in the case of Coetzer and Others vs the Minister of Safety and Security (2003 2 BLLR 173) the Labour Court voted against (alleged) racial discrimination despite the fact that it had been perpetrated in the name of affirmative action.
Coetzer and his colleagues were all members of the police force’s (SAPS) explosives unit. They complained that it was unfair for them to be refused promotions due to the fact that they were white males and therefore did not belong to groups designated for affirmative action. The SAPS claimed that it was merely carrying out its employment equity plan (EE Plan) in accordance with the law.
The Court noted however, that the SAPS had also undertaken not to erect absolute barriers against advancement of employees from non-designated groups. Also, no applications from members of designated groups had been received. The SAPS was therefore ordered to promote the white males.
In the case of Oerlikon electrodes SA vs CCMA and others (2003 9 BLLR 900) the Labour Court was asked to review an award made by a CCMA commissioner relating to the dismissal of an employee for using racist language. The arbitrator had found the dismissal to be unfair partly because the employer’s disciplinary code did not provide for dismissal on a first offence of using racist language. The employee was consequently reinstated with retrospective effect. The Labour Court found that:
- The employee had admitted to calling a repairman of a service provider a “Dutchman” and had further admitted that this was a derogatory term
- The employer’s disciplinary code did require two warnings before dismissal could be implemented. However, the employer was not required to follow its disciplinary code rigidly
- The term “Dutchman” was racist in the sense that it connoted white supremacy. While this might not be seen as being as serious as terms such as “kaffir” it was still unacceptable
- The employer had the right to deviate from its disciplinary code when circumstances called for this
- The CCMA commissioner had improperly interfered with the employer’s right to impose discipline
- The dismissal was fair.
- The Courts will not allow employers to practice racism unless it is done in the name of genuine affirmative action
- Even moderate forms of racism will not be tolerated in South African workplaces
- Employees may, under certain conditions, be fired even if the employer’s disciplinary code does not provide for dismissal.
However, employees must avoid making false accusations of racism as this could put them on hot water. In the case of SACWU and another vs NCP Chlorchem (Pty) Ltd (2007, 7 BLLR 663) the employee was attending a meeting when he unjustifiably accused a colleague of racism and threatened to call for his dismissal. The employee was then dismissed for having made a false allegation of racism. He then referred a dispute of unfair dismissal to the bargaining council where the arbitrator upheld the fairness of the dismissal. The employee then took the matter to the Labour Court where it was decided that:
- Falsely accusing a person of racism threatens racial harmony at the workplace
- It is racially offensive, abusive and insulting
- Such accusations therefore deserve strong discipline
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