When arbitrators and judges decide on whether a dismissal was for a fair reason they are required to apply what is called ‘the objective test’. That is, they must establish whether a reasonable person would have decided unemotionally that the employee’s conduct merited dismissal.

This test is difficult to apply because determining what a ‘reasonable person’ is is itself a matter of individual judgement. Nevertheless, employers need to understand this rigid principle because the courts are bound to apply it when deciding whether the employer has acted fairly.

In the matter of the Commercial Stevedoring Agricultural and Allied Workers Union obo Vuyani Qomoyi Vs Namaqua Wines (Pty) Ltd (Lex Info 08 April 2026. LAC case no CA 18/2024) the Labour Appeal Court provided a clear explanation of ‘the objective test’ principle, which makes a summary of that case outcome useful.

In that case Mr Meyer, a manger summoned Mr Qomoyi, a shop steward to a meeting to witness Mr Meyer firing one of Mr Qomoyi’s black colleagues. Mr Qomoyi was later fired for having told Mr Meyer in that meeting that he was a ‘white racist’ who was firing black workers. Both the CCMA arbitrator and the Labour Court agreed that Mr Qomoyi’s statement had been racist.

On appeal the Labour Appeal Court (LAC) took a different view. While, subjectively, Mr Qomoyi’s comment could have been viewed as racist the law requires arbiters to apply the objective, reasonable person test. This involves looking objectively at the context of the employee’s conduct, it’s intention and what provoked it.

The Court proceeded to apply the objective test by delving into the management-employee relations circumstances at the Namaqua workplace, at the incident that had provoked Mr Qomoyi’s outburst and at Mr Qomoyi’s mindset at the time. Mr Qomoyi had observed the manager firing a black worker, apparently without a disciplinary hearing. As the fired employee had not, to Mr Qomoyi’s knowledge, been proved to have committed a dismissible offence, Qomoyi interpreted this to mean that the manager had fired him, not for good cause, but because he was a white racist.

While the manager, Mr Meyer testified that he had been hurt by the Mr Qomoyi ‘racist’ remark nobody else testified that they had found the remark to be racist. This left the only interpretation of the remark to be Meyer’s subjective view.

The Court therefore found that Qomoyi had objectively and for good reason believed that Meyer’s actions had been racist and had merely expressed this objective view as opposed to having made a racist comment.

The Court further stated that the employer should, instead of firing Mr Qomoyi, have investigated the allegations of management racism that Qomoyi had made. The LAC ordered the employer to reinstate Mr Qomoyi with 55 months backpay.

This is yet another case where a misguided employer had breached the law and had to go through the very long and extremely costly process of adjudication at the CCMA, Labour Court and Labour Appeal Court. This means that all managers need to be trained to understand that the laws against racism exist primarily to protect members of previously disadvantaged groups and that failing to implement ‘the objective test’ could prove very costly.

The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve crucial labour relations knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.

A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.

This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.

To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za

Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za