Racism by an Employee in the Workplace is no Ground for a Procedurally Unfair Termination
December 9, 2016
Racism by an Employee in the Workplace is no Ground for a Procedurally Unfair Termination
South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and 2 others
Constitutional Court of South Africa
Mogoeng CJ, Nkabinde ADCJ, Cameron, Froneman, Jafta, Khampepe, Madlanga, Zondo, Mhlantla JJ, Mbha, Musi AJJ
November 8, 2016
Reported by Linda Awuor & Faith Wanjiku
Constitutional Law-Bill of Rights-just administrative action- whether the Applicant’s Commissioner’s change of a sanction of final written warning, and suspension without pay to dismissal was contrary to just administrative action- Constitution of the Republic of South Africa,1996, section 33
Labour law- unfair dismissal and unfair labour practice-unfair dismissals –fair procedure- whether the 3rd Respondent’s dismissal on the ground of racism could be termed as procedurally unfair for lack of an opportunity to be heard – Labour Relations Act No. 66 of 1995, section 188 (1) (b)
Labour law-unfair dismissal and unfair labour practice -unfair dismissals-remedies for unfair dismissal and unfair labour practice- whether reinstatement to work was the appropriate remedy for the 3rd Respondent on being unfairly dismissed over racism- Labour Relations Act No. 66 of 1995, section 193
The 3rd Respondent was employed by the Applicant from November 25, 1991 and served as an anti-smuggling officer at the time of his dismissal. On July 27 and August 2, 2007, after an altercation with Mr. Abel Mboweni, his superior, the 3rd Respondent referred to him as a kaffir. As required by a collective agreement between the Applicant and the unions in its workplace, the Applicant arranged for a disciplinary enquiry. At the inquiry, the 3rd Respondent faced the following charges:
a) Ek kan nie verstaan hoe kaffirs dink nie (direct translation: I cannot understand how kaffirs think.) (Charge 1)
b) A kaffir must not tell me what to do (Charge 2)
c) By so doing he used the racist remarks kaffir or alternatively he used derogatory and abusive language towards his team leader Mr. Mboweni. (Charge 3).
He pleaded guilty and a favourable sanction was successfully negotiated by the Chairperson of the disciplinary enquiry with Mr. Moodley, an employee and a representative of the Applicant in those proceedings. After a discussion with the 3rd Respondent and his representatives, a sanction was imposed. It stated that he was to get a final written warning valid for six months, suspension without pay for ten days and had to undergo counselling.
Upon receipt of the report on the outcome of the disciplinary enquiry, the Applicant changed it from a final written warning to a dismissal. That was however done without affording the 3rd Respondent the opportunity to contest the appropriateness of the higher and terminal sanction. As a result, he challenged the fairness of his dismissal. He referred an unfair dismissal dispute to the 1st Respondent for conciliation and later arbitration.
The 1st Respondent found the substituted sanction of dismissal substantially unfair and restored the position as it was before the Applicant’s offending intervention. The Applicant challenged the award in the Labour Court that it had no power to change a sanction of a disciplinary enquiry and that the award was vitiated by its unreasonableness. The Court dismissed it on the basis that the collective agreement did not permit the Applicant to substitute the sanction imposed by the Chairperson of the disciplinary enquiry. Aggrieved by that outcome, the Applicant appealed to the Labour Appeal Court but it was still unsuccessful. The Applicant then filed the application, for leave to appeal.
i.Whether the 3rd Respondent’s dismissal on the ground of racism could be termed as procedurally unfair under section 188 (1) (b) of the Labour Relations Act (LRA) for lack of an opportunity to be heard.
ii.Whether the Applicant’s Commissioner’s change of a sanction of final written warning, and suspension without pay to dismissal was contrary to section 33 of the Constitution of the Republic of South Africa on just administrative action.
iii.Whether reinstatement to work under section 193 of the LRA was the appropriate remedy for the 3rd Respondent on being unfairly dismissed over racism.
Relevant Provisions of the Law
The Constitution of the Republic of South Africa, 1996
Section 16-Freedom of Expression
(1) Everyone has the right to freedom of expression, which includes—
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to—
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
Section 33-Just administrative action
(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must—
(a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and
(c) promote an efficient administration.
Labour Relations Act No. 66 of 1995
Section 193-Remedies for unfair dismissal and unfair labour practice
(1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may -
(a) order the employer to reinstate the employee from any date not earlier than the date of dismissal;
(b) order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or
(c) order the employer to pay compensation to the employee.
(2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless -
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
(d) the dismissal is unfair only because the employer did not follow a fair procedure.
Section 194-Limits on compensation
(1) The compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.
Held: Mogoeng CJ (unanimous)
- The matter raised important issues that went beyond the interests of the parties. Some of those issues were how employers could deal with racism in the workplace and how the 1st Respondent’s arbitrators were to handle the possible reinstatement of an employee who was guilty of crass racism but did not acknowledge or apologise for it. Also to have been considered was the approach courts could have adopted in matters that involved racism so that they could have contributed to its elimination in the workplace and broader society.
- Racism remained rampant in South Africa. A point of law that was enmeshed in a decision or legal atmosphere that was about whether crude racism in a workplace could be reconcilable with reinstatement, was of such general public importance that it had to have received the attention of the Court. The centrality of the fundamental values of non-racialism and human dignity to the issues and the Applicant’s strong prospects of success was in the interests of justice that leave to appeal had to be granted.
- Unreasonableness was one of the grounds on which an arbitrator’s award, issued under the auspices of the 1st Respondent, in respect of a dismissal dispute could be reviewed and set aside. The constitutional standard of reasonableness was the one explained in Bato Star; whether the decision reached by the Commissioner was one that a reasonable decision-maker could not reach. Its application could have given effect not only to the constitutional right to fair labour practices, but also to the right to administrative action which was lawful, reasonable and procedurally fair.
- The correct approach to be adopted when the dismissal had been found to be unfair, was first to consider the provisions of section 193(1) of the LRA and then section 193(2) to determine which of the three remedies could be granted. A failure to have regarded the provisions of sections 193(1) and (2) could have led to the Court or arbitrator granting an award of reinstatement in a case in which that remedy was precluded by section 193(2).
- Unlike in Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp where an employee was dismissed for one incident, in the present case there were two inextricably-linked incidents of saying of a fellow employee that he was a kaffir. That abusive and derogatory language was directed not only at Mr Mboweni but all of the 3rd Respondent’s fellow African workers. He impugned their thinking or intellectual capacity and undermined their perceived inherent leadership or managerial incapability. None of his African colleagues was in his world-view worthy of effectively exercising authority over him. His was a demonstration of the worst kind of contempt, racism, and insubordination. A proper reflection on those racial statements alone was enough to have led the 1st Respondent to the inescapable conclusion that reinstatement was the most inappropriate remedy.
- None of that should have led to the mistaken belief that the use of very strong derogatory language like kaffir could always militate against the reinstatement of an offending employee. Crown Chickens did not purport to lay that down or articulate it as an inflexible principle. On the contrary, the Court underlined the particularly crucial role that courts had to play of ensuring that racism or racial abuse was eliminated. They had to fulfil that duty fairly, fully and firmly. The notion that the use of the word kaffir in the workplace could be visited with a dismissal regardless of the circumstances of a particular case was irreconcilable with fairness. It was conceivable that exceptional circumstances could well have demonstrated that the relationship was tolerable but, that was certainly not such a case. A lot more would have to be set out by the offending employee to explain away the obvious intolerability of the continued working relationship. Contrary to the 3rd Respondent’s contention, an employee could have had a bigger role to play to undercut the grossly offensive nature and effect of those dignity-suffocating insults. It could not be primarily the duty of the employer to explain the intolerability that flew effortlessly from the obviously repugnant conduct of the employee.
- The Applicant was not only an organ of state but it obviously had numerous African and white employees. It was constitutionally and relationally intolerable to have any racist daring enough to refer to fellow employees as kaffirs, within the employ of the Applicant. His African co-employees knew that he called one of them a kaffir and that he regarded them as lazy, incapable of leading him and intellectually inferior to him solely because of their race. They could have been entitled to feel extremely offended and regarded as highly insensitive of the Applicant, to have kept in their midst someone like the 3rd Respondent. Labour jurisprudence revealed that, where employees had discovered that there was in their workplace an active racist, it had sometimes led to labour unrest. To retain the 3rd Respondent as an employee, wherever he might have been placed, could have been similar to recklessly leaving a ticking time-bomb unattended to, knowing that it could have self-detonated at any time, with consequences that could have been too ghastly to be contemplated.
- The 1st Respondent should have been alive to the enormous problems racism had caused and continued to cause in the country. She should also have factored into her decision the special role that the Applicant as an organ of state was required to play in the fight against racism and in efforts aimed at its eradication both in the workplace and in society. She appeared to have ignored or given insufficient weight to those crucial factors. By ordering the Applicant to reinstate the 3rd Respondent, the 1st Respondent acted unreasonably. She also did not appear to have been mindful of the fact that in terms of section 193(2) of the LRA, reinstatement could not have followed as a matter of course. It could in fact not have been an option if circumstances that surrounded the dismissal were such that a continued employment relationship could have been intolerable. No reasonable arbitrator could have ordered reinstatement. That reinstatement part of her award was thus unreasonable and should have been reviewed and set aside.
- An unfair dismissal ought to have earned an employee compensation where reinstatement was not feasible by reason of the intolerability of the continued working relationship. The Applicant had offered the 3rd Respondent compensation for his unfair dismissal. That raised very interesting questions; whether it was open to or appropriate for the Court to have denied an employee compensation in circumstances where he was not only dismissed in an admittedly unfair manner but also where the employer who could have been burdened with the obligation to pay was not necessarily averse to payment or was willing to pay.
- Compensation was not automatic as it was a discretionary matter. A whole range of factors had to be taken in to account to determine whether compensation had to be paid and if so, for how many months. One of the key factors was the need to have ensured that employers were not inadvertently encouraged by the non-payment of compensation to have adopted a shotgun approach of dismissing employees without having afforded them the opportunity to be heard. Employees were ordinarily vulnerable because, unlike employers, they did not often have the resources necessary to vindicate their rights by prosecuting cases all the way up to the courts. Condoning the flouting of laws that governed the fate of people’s livelihood was a matter so serious that it always required greater sensitivity and care. Relevant factors were, of course, the marked deviation from procedure by the Applicant’s Commissioner when he dismissed the 3rd Respondent. The impact of the gross misconduct that the 3rd Respondent was guilty of on the employer and its workplace environment was an important factor to have helped decide on compensation.
- The use of the term kaffir captured the heartland of racism, its contemptuous disregard and calculated dignity-nullifying effect on others. It bore repetition that, the 3rd Respondent’s utterances constituted a racial minefield in the workplace that was ever-ready to explode at the slightest provocation. Conduct of that kind needed to be visited with a fair and just but very firm response by the Court and others as custodians of the constitutional democracy if the country ever hoped to arrest or eliminate racism. Mollycoddling could not cut it.
- A conspectus of all the relevant factors suggested that compensation had to be paid to the 3rd Respondent. First, the sanction of dismissal was so livelihood-threatening and serious that a breach of the relevant regulatory framework ought to have generally been viewed in a serious light. The Applicant was not dead against the payment of compensation provided it was not for more than six months. It was also a factor to take into account that although comparatively well-resourced, the Applicant had severally floated from one blunder to another and thus caused the 3rd Respondent or his sponsors to be financially burdened through litigation, when that could have been avoided. That had truly been a tragedy of errors by the Applicant. Not only had the Applicant’s representative effectively struck a deal with the 3rd Respondent in relation to sanction, but the Applicant’s Commissioner then acted against and in effect reneged on their own deal. Even when he did, presumably with the benefit of legal advice, he reversed the sanction unilaterally. All those factors pointed strongly to the appropriateness of awarding some compensation to the 3rd Respondent.
- Section 194(1) of the LRA required, very much in keeping with the spirit of section 172 of the Constitution that the remedy for unfair dismissal be just and equitable. The 3rd Respondent’s utterances amounted to one of the worst violations of human dignity that according to the jurisprudence amounted to hate-speech and had to be rooted out. However, all of the above factors pointed to compensation as the just and equitable remedy that was appropriate in the matter. The Applicant had reconciled itself with the possibility of payment of up to six months. But for its offer and a series of inexplicable and prejudicial blunders, a lesser period or no compensation could arguably have been more appropriate. Compensation for the period of six months for misconduct as gross as that of the 3rd Respondent and the lies he told, was by any standard generous.
On appeal from the Labour Appeal Court (hearing an appeal from the Labour Court):
- Leave to appeal was granted.
- The orders of the Labour Court and the Labour Appeal Court were set aside and that of the Labour Court replaced with the following:
(a) To the extent reflected in paragraph (b) below, the review application had succeeded.
(b) That part of the arbitrator’s award in terms of which the 3rd Respondent was reinstated in the employ of the Applicant was reviewed, set aside and replaced with the following:
(i) The Applicant had to pay the 3rd Respondent compensation equivalent to his salary for six months at the time of dismissal.
3. Each party was to pay its or his own costs, in the Court and in the Labour Appeal Court.
Relevance to the Kenyan Situation
Kenya has similar laws that regulate its employment sector touching on discrimination in the work place and the appropriate administrative action that should follow. The Constitution of Kenya, 2010 provides for freedom of expression in article 33(1) under Chapter 4 of its Bill of Rights but sub article (2) states that it doesn’t apply to advocacy of hatred thatis based on any ground of discrimination specified or contemplated in article 27(4). The grounds include discrimination based on race. Article 41 (1) provides that every person has the right to fair labour practices. Article 47 provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
There’s also the Employment Act No.11 of 2007 which regulates the employment sector in Kenya. Section 5 provides that it shall be the duty of the Cabinet Secretary, labour officers and the Employment and Labour Relations Court to promote equality of opportunity in employment in order to eliminate discrimination in employment. Section 45 (1) provides that an employer cannot terminate the employment of an employee unfairly. Section 47 goes on to state that where an employer has unfairly terminated his employment without justification, the employee may, within three months of the date of dismissal, present a complaint to a labour officer and the complaint shall be dealt with as a complaint lodged under section 87 on disputes settlement procedure. Section 49 provides for remedies for unfair termination. They include:
a) Wageshe would have earned for the period of notice he was entitled.
b) Wage due for the period of time for which the employee has worked.
c) The equivalent of a number of month’s wages or salary not exceeding twelve months.
There is also the African (Banjul) Charter on Human and People’s Rights, 1981 to which Kenya is a state party. Article 9 (2) provides that every individual shall have the right to express and disseminate his opinions, but within the law.
There is also case law that shows that termination of an employee’s employment should be effected in a fair procedure despite the ground(s) for termination. In Mary Chemweno Kiptui v Kenya Pipeline Company Limited , the Claimant was charged and arraigned in court for corruption and subsequently terminated by her employer over grounds of public interest. She was denied the chance for reviewal. The Court found for her and ordered the Respondent reinstate and compensate her for a procedurally unfair termination.
In David Wanjau Muhoro v Ol Pejeta Ranching Limited , the Court held the Claimant as having been unlawfully terminated for not being adequately provided with evidence on his alleged fraud in the company, discriminated against by the Respondent, on account of his race, and paid an unequal pay for equal work, or work of equal value. He was compensated for the same.
In Charles Oyunge Onkware v Telkom Kenya Limited , the Claimant was dismissed for being negligent and dishonest. He was given 48 hours to defend himself and was never given an opportunity to be heard by the board as required under the Respondent’s regulations. The Court held it as procedurally unfair and ordered for his compensation.
However, in John Kisaka Masoni vs. Nzoia Sugar co. Limited (2015), the Court declined to compensate the Claimant for being summarily dismissed as he had falsified his papers when applying for the job.
The above South African case shows that procedurally unfair termination is still rampant in the employment sector but liable employees still need to be afforded just administrative action regardless. It will serve as an important precedent to Kenya especially where the issue of racism is the ground for termination.