RACISM, in all its forms, is abhorrent and if proved it is grounds for dismissal. It is equally unpalatable for employees to level untrue allegations of racism.
This was a central theme in a recent Commission for Conciliation, Mediation and Arbitration (CCMA) arbitration award in Numsa obo Baloyi, Gift and 3 others v O-Line (Pty) Ltd (Case number MEGA50052).
The circumstances that led up to this case were that on the day in question the employees were playing cards out of the employer’s premises during their tea break.
The CEO stopped his vehicle at the gate, called at the employees, got out of the car and walked towards the employees angrily and allegedly used the f-word while addressing them.
On the evidence, the employees later tried to talk to the CEO after the incident in his office, but he refused to give them a hearing.
The employees were subsequently issued with a notice to attend a disciplinary hearing.
On the morning of the scheduled disciplinary hearings, the employees submitted grievances to the HR manager wherein they alleged that the CEO called them the “K-word” while admonishing them for playing cards outside the employer’s premises. This was in response to their having been charged with insubordination for not adhering to the instruction of not playing cards outside the employer’s gate.
The employees were found guilty of insubordination at the disciplinary hearing and issued with final written warnings.
The employees were also issued with disciplinary hearing notices for making false allegations of racism against the CEO. They were found guilty and dismissed.
In the arbitration award, the commissioner noted that: “I have considered the evidence of both the respondent and the applicants.” The respondent’s witnesses testified that (the CEO) could not have called them a racially derogative term since the applicants alleged that he called them the K-word in Afrikaans and that other Afrikaans words were used during this altercation. They argued that (the CEO) cannot speak Afrikaans because he is English-speaking.
The applicants, on the other hand, stood by their claim that such racial terminology was used.
The commissioner continued that: “The applicants were dismissed for deliberately supplying incorrect and/or falsified information related to an accusation the employees had made against the CEO, (who) to the effect that he addressed them with a racist slur (calling them K******), idiots and other swear words,” and that:
“It is common cause that the applicants made this accusation in the form of grievances on October 17, 2016 and this was confirmed during their disciplinary hearing on the same day. This was made during a disciplinary hearing for an unrelated allegation against the applicants.”
The CEO, while acknowledging that he was angry and used the f-word, denied using the k-word, and “denied that he can speak Afrikaans and that he would never address a person in Afrikaans since he is from Zimbabwe and English-speaking.
He conceded that he was very angry with the applicants and that he possibly called them idiots and used (the f-word) during his address of the applicants, but he never made any racial remarks.
“In addition, why would he make it in a language he does not speak while he is angry? (The commissioner) requested him to read the grievance and he struggled to pronounce ‘kom hierso’. Even the applicants during their own evidence testified that (the CEO) called them by saying ‘come here guys’.”
The commissioner concluded the CEO had not used the k-word. He held that: “When analysing the facts before me in totality I arrive at the conclusion that the respondent has established that the applicants made false claims against the CEO and that the CEO never called them the K-word but the F-word.
There was no racial or discriminatory language used towards the applicants when addressed by the CEO on October 7, 2018. It is clear from the evidence of Mr Radimpe that the Numsa officials probably invented the racial defence on Saturday, October 15, 2016, when they had further discussion regarding the applicants’ insubordination charges.
It was clearly a defence since they advised Mr Radimpe to only make the allegations if the applicants were charged. In the event that the applicants were not charged, this allegation would never have seen the light of day.”
Quite rightly, the commissioner in upholding the fairness of the dismissal of the employees for making false allegations of a racial slur, noted that: “The gravity of the charges were such that it could have caused the end of the CEO’s career and caused severe reputational damage. The reputational damages of the respondent could also have been irreparable.”
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates.
Visit www.tonyhealy.co.za. Call 0861 115 375 or email [email protected]