Court: Constitutional Court of South Africa
Date of judgment: 13 September 2018
On 13 September 2018, the Constitutional Court dismissed an appeal by Duncanmec (Pty) Limited against an arbitral award regarding nine employees. The employees had been found guilty of racially offensive conduct for singing a struggle song with the word ‘boer’ in it during a strike. While the disciplinary hearing had held that the appropriate sanction was a dismissal, the arbitrator for the Bargaining Council instead concluded that the dismissal was substantively unfair and ordered the employees to be reinstated.
On 30 April 2013, during an unprotected strike at the premises of Duncanmec, the striking employees danced and sang struggle songs. The lyrics they sang in Zulu were translated as follows: “Climb on top of the roof and tell them that my mother is rejoicing when we hit the boer”.
Nine employees were charged with misconduct. Following a disciplinary hearing, the chairperson concluded that the dancing and the singing of the song amounted to racism and that this was sufficiently serious to warrant dismissal. This was so regardless of the fact that Duncanmec’s disciplinary code did not make it a dismissable form of misconduct.
The dismissal was challenged in the Bargaining Council, which appointed Ms Jeanne Gaylard as the arbitrator to arbitrate the dispute. In her view, although she held that the singing of the song was offensive, it did not constitute racism. The arbitrator reasoned as follows:
“While I regard the singing of the song translated to ‘stand on top of the rooftop and shout that my mother is rejoicing if we hit the boers’ as inappropriate, particularly within the context of a workplace, I am of the view that differentiation between singing this song and referring to someone with a racist term needs to be drawn. This is since this song is a struggle song and there is a history to it. While this is the case the song can be offensive and cause hurt to those who hear it.”
The arbitrator concluded that the dismissal was substantively unfair and that the employer did not discharge the onus and prove that that the sanction of dismissal was fair in the circumstances. Accordingly, the arbitrator ordered the employees to be reinstated but limited their compensation as a show of disapproval of the singing.
Dissatisfied with the outcome, Duncanmec launched an application to have the arbitral award reviewed and set aside by the Labour Court. The Labour Court held that in the context of a strike which ordinarily involves the singing of struggle songs in support of the demand for workers’ rights, it cannot be said that the arbitrator’s award was so unreasonable that no arbitrator could have made it. The Labour Court further endorsed the arbitrator’s approach to the matter, in particular regarding the relevant context and the peaceful nature of the strike.
The Labour Court, therefore, dismissed the application and made the award an order of the court. It subsequently dismissed an application for leave to appeal. The Labour Appeal Court also dismissed an application for leave to appeal by Duncanmec.
Judgment of the Constitutional Court
The Constitutional Court noted at the outset as follows:
Regrettably, so far the Constitution has had a limited impact in eliminating racism in our country. Its shortcomings flow from the fact that it does not have the capacity to change human behaviour. There are people who would persist in their racist behaviour regardless of what the Constitution says. It is therefore the duty of the courts to uphold and enforce the Constitution whenever its violation is established.
The increasing number of complaints of racism at the workplace which come before our courts is a matter of concern.
The Constitutional Court identified the two issues on the merits for determination as follows: (i) whether the conduct of the employees in singing the struggle song constituted racism; and (ii) whether the impugned award was vitiated by unreasonableness.
As to the first question, the Constitutional Court noted that the word ‘boer’ in itself is not an offensive racist term. According to the court, depending on the context, the word may mean ‘farmer’ or ‘white person’ – neither of which is racially offensive.
However, Duncanmec’s legal representative argued that it was the context in which the word was uttered that rendered the singing a racist act. The trade union representing the employees did not take issue with the arbitrator’s finding that the singing of the song in the workplace was inappropriate and offensive in the circumstances. Accordingly, the Constitutional Court noted that it was willing to approach the matter on the footing that the employees were guilty of racially offensive conduct.
As to the second question regarding the reasonableness dismissal as the appropriate sanction, the Constitutional Court considered the factors that the arbitrator had taken into account. It noted that by distinguishing the singing of the song from crude racism, the arbitrator had paid attention to the context in which the misconduct was committed. Furthermore, it noted that in determining the fairness of the dismissal, the arbitrator was applying a “moral or value judgment to established facts and circumstances”, and that the arbitrator had considered the competing interests of Duncanmec and the employees. Accordingly, it concluded that these factors illustrated rationality leading up to the arbitrator’s decision, and the reasonableness requirement had been met.
Order of the Constitutional Court
In the result, the Constitutional Court made the following order:
- Leave to appeal is granted.
- The appeal is dismissed.
- There is no order as to costs.
The judgment is accessible here.
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