LLA 762 Racism as misconduct
Racism is a subject which evokes strong emotions particularly in the current political and economic climate in South Africa. For that reason it is necessary to attempt to discuss the topic in a manner which will lead to the fair application of the law as it has now been developed, which as will be seen is no simple task.
A review of case law presents a generally welcome balance when it comes to conduct that is held to be racist and the sanction that is then deemed to be appropriate. Arbitrators and our Labour Courts have held the line against the noise coming from those who deem themselves to be politically correct, or whose aim is to score political points rather than seek and apply industrial justice.
The leading case is nowa Constitutional Court judgement, which means that awards and judgements handed down before that then should be reviewed and considered in its light, which this discussion attempts to do.
As with all articles written for the Labour Law Academy (Pty) Ltd the purpose of this discussion is to assist Practitioners to understand and apply the law fairly when incidents of racism-whether apparent or real- take place in a workplace. As such the article seeks to explain the law as it is and has been developed through case law. It is not to indulge in vilifying findings and judgements but to seek best practice and explain it in the most accessible manner.
The judgement was delivered in May 2018
Rustenburg Platinum Mine v SA Equity Workers Association on behalf of Bester & others(2018) 39 ILJ 1503 (CC)
This article forms part of the book “A Practitioner’s Guide to Unfair Dismissal”.