The Constitutional Court (CC) recently handed down an important judgment in relation to the treatment of employees found guilty of making racist remarks in the workplace, and whether such employees could be reinstated to their former positions.
In South African Revenue Service v Commission for Conciliation, Mediation and Arbitration & Others ZACC 38, the employer, the South African Revenue Service (SARS) had dismissed a White employee for using the racial slur “kaffir” in relation to his Black colleagues on two occasions. At the disciplinary enquiry, the employee had pleaded guilty and was given a final written warning and placed on suspension without pay. However, the Commissioner of SARS (which is an organ of State) unilaterally reversed this sanction and dismissed the employee, without affording him an opportunity to be heard in relation to the harsher sanction. This was also in contravention of a binding collective agreement between SARS and the unions at its workplace.
After the employee successfully challenged his dismissal at the CCMA (the arbitral body which deals with, amongst others, unfair dismissal disputes) and was reinstated‚ SARS approached the Labour Court and Labour Appeal Court, but failed in both instances.
The CC, however, upheld SARS’ appeal in so far as it related to the order of reinstatement, replacing this with an award of 6 months of compensation, due essentially to the contravention of the collective agreement, and the failure to allow the employee to be heard before imposing the dismissal sanction. In a scathing judgment‚ the Court described the use of the racial slur in question as egregious, derogatory and humiliating, and made it clear that the seriousness of the employee’s racist remarks could not be overlooked by the courts in a country still fighting the scourge of racism, while at the same time pointing out that employers still need to act procedurally fairly when seeking to dismiss employees accused of racism. The CC also stated that where an employee has been found guilty of racist conduct, it should be assumed that reinstatement will not be an appropriate remedy, and it will be up to the employee in question to show that there are exceptional circumstances, which should see him/her to be reinstated (such circumstances were not present in this case).