South Africa’s racist past continues to affect our democratic society. This also follows us into the workplace to such an extent that the courts have had to consider incidents involving racism in the workplace.

This was the case in the recent judgment in Duncanmec (Pty) Limited v Gaylard N.O. and Others [2018] ZACC 29. In this case, the Constitutional Court examined how incident of alleged racism should be handled in the work place.

Duncanmec (Pty) Limited v Gaylard N.O. and Others [2018] ZACC 29

In the above-mentioned case the employees of Duncanmec had participated in an unprotected strike during which they sang a struggle song in isiZulu. The lyrics of the songs translated to "climb on top of the roof and tell them that my mother is rejoicing when we hit the boer".

The Employer found the Employees guilty of misconduct and dismissed nine Employees. The Employees referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (hereafter “CCMA”). The matter proceeded to arbitration and the Arbitrator agreed that the Employees were guilty of misconduct. However, the Arbitrator changed the sanction to a final written warning.

The court had to determine whether the singing of the struggle song, constituted racism and whether the Arbitrator’s award was unreasonable. The court held that the Arbitrator did not find that the song contained racist words. Instead, she concluded that the song was inappropriate and that “it can be offensive, and cause hurt to those who hear it”. More importantly, the Arbitrator drew a distinction “between singing the song and referring to someone with a racist term”. The court held that the Employees were guilty of racially offensive conduct.

In determining whether the Arbitrator has been reasonable, the court indicated that there is no principle in our law that requires dismissal to follow automatically in the case of racism. The Arbitrator had made a distinction between the singing of a struggle song which did not contain any racist terms by a group of Employees, during a peaceful and short-lived strike and crude racism.

The surrounding circumstances of the incident must be closely considered. The court found that the Arbitrator had been reasonable in concluding that a final written warning and reinstatement, coupled with a limited compensation was a fair outcome.

Conclusion
This case illustrates that while racism is a serious matter, not all acts constitute racism and can be merely racially offensive. More importantly, it illustrates that dismissal does not follow automatically in the case of racism. The surrounding circumstances and context of each incident must therefore be examined. Such a rigid approach would be inconsistent with the principle of fairness which constitutes the benchmark against which dismissals are tested.

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Written by Sixolile Timothy, Professional Assistant, Attorney, Schoeman Law