WORKPLACE RACISM

By

Sarvesh Nair

Submitted in partial fulfilment of the requirements for the degree of

MAGISTER LEGUM

In the Faculty of LawAt the Nelson Mandela Metropolitan University

Supervisor: Prof JA Van der WaltSeptember 2015

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Dedicated to Mr Scott Beard and Mr Paul J Harrison. Gentlemen, thank you for providing me with inspiration.

To my parents, mummy and daddy, thank you for always being there for me and putting up with me during my studies.

Ivashan, I hope that I have made you proud.

Measure for Measure

go measure the distance from cape town to pretoriaand tell me the prescribed area i can work in

count the number of days in a yearand say how many of them i can be contracted

around

calculate the size of house you think good for meand ensure the shape suits tribal tastes

measure the amount of light into the windowknown to guarantee my traditional ways

count me enough wages to make certain igrovel in the mud for more food

teach me just so much of the world that ican fit into certain types of labour

show me only those kinds of lovewhich will make me aware of my place at all times

and when all that is donelet me tell you thisyou’ll never know how far i stand from you

Sipho SepamlaThe Soweto I love

(1977)

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CHAPTER 1.............................................................................................................................

1 Background and Rationale for the Study......................................................................

2 Problem Statement.......................................................................................................3 Research Question.......................................................................................................

4 Aims and Objectives of the study...............................................................................5 Research Methodology...............................................................................................

6 Outline of Research....................................................................................................CHAPTER 2............................................................................................................................

1 The development of South African Labour Law..........................................................2 Common Law and its Deficiencies..............................................................................

2 1 Addressing deficiencies......................................................................................

CHAPTER 3............................................................................................................................1 Legislative Provisions.................................................................................................

2 Scope of section 23....................................................................................................2 1 What do fair labour practices entail?...................................................................

2 2 Scope of protection from unfair labour practices under the LRA........................2 3 Reliance on Constitution rather than LRA...........................................................

3 Equality.......................................................................................................................3 1 The Employment Equity Act................................................................................

3 2 Amendments to the EEA.....................................................................................

CHAPTER 4……………………………………………………………………………….…..36

1 Introduction.................................................................................................................2 What is a delict...........................................................................................................

3 Vicarious Liability........................................................................................................3 1 The Employer-employee relationship..................................................................

3 2 The employee must have committed a delict......................................................

4 In the course of employment......................................................................................

5 Conclusion..................................................................................................................CHAPTER 5............................................................................................................................

1 Introduction.................................................................................................................2 Case Law on Abusive Language and Racist Comments............................................

3 Analysis trends and conclusions drawn from case law...............................................4 Conclusion..................................................................................................................

CHAPTER 6............................................................................................................................1 Introduction.................................................................................................................

2 Relevant Institutions...................................................................................................3 Disputes involving Racial Comments.........................................................................

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3 1 Jurisdiction of the CCMA in terms of the EEAA..................................................

3 2 Burden of Proof...................................................................................................

4 Discipline by Employer...............................................................................................

4 1 Procedural fairness of a dismissal......................................................................

4 2 Substantive fairness of a dismissal.....................................................................

5 Shortcomings and recommendations.........................................................................CHAPTER 7............................................................................................................................

BIBLIOGRAPHY.....................................................................................................................

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CHAPTER 1

1 Background and Rationale for the Study

In this section the reader is introduced to the background and issues of the proposed

research as well as the circumstances and events that brought the topic of racism in

the workplace to the attention of the writer.

“It did not take me long to understand that I knew and spoke more Afrikaans than I

cared to admit … Afrikaans was all around me when I was growing up. It was the

language of power; the language that gave words such as swartes (blacks), [K]leurling

([C]oloured), net blankes (whites only) and geen ingang (no entry) their menace.

Afrikaans was also the language that gave the world ‘‘apartheid’’: a word that has so

seared itself into the global imagination that it requires no translation. But that is not all

there was to Afrikaans. It was also the grammar for the tsotsitaal1 I heard spoken by

older boys on the street; the syntax at the heart of adult conversation from which

children in my house were excluded. What’s more, Afrikaans was the language of

Gerhardus Christiaan Coetzee, the boxing hero whose very name was as Afrikaans as

a name could ever be.”2 Years later when completing my articles of clerkship, the

name of my principal was as South African as it came: Mr Johannes Theodorus van

Ginkel Bekker.

Back in the early 1990s, as a young South African, I strutted down the streets of

Schauderville with my head held high as I was the first member of my family to be

enrolled at the University of Port Elizabeth (now called the Nelson Mandela

Metropolitan University) to complete a bachelors in Law (LLB). My head was filled with

lofty ideals while my bank balance was as empty as a politician’s campaign promise.

The feeling of positivity pulsated through the country and kwaito3 filled my

neighborhood as everyone was free at last. Free to engage in education and in “any”

employment of one’s choice.4 1 Tsotsitaals are mixed languages spoken in the townships of Gauteng province, such as Soweto. Tsotsi is a Sesotho slang word for a "thug" or "robber" (possibly from the verb "ho tsotsa" "to sharpen" — whose meaning has been modified in modern times to include "to con"; or from the tsetse fly, as the language was first known as Flytaal; "flaai" also means cool or street smart) and “taal” is the Afrikaans word for "language". A tsotsitaal is built over the grammar of one or several languages, in which terms from other languages or specific terms created by the community of speakers are added. It is a permanent work of language-mix, language-switch, and terms-coining.2 De Vos “The Past is Unpredictable: Race, Redress and Remembrance in the South African Constitution” Lecture presented at the University of Cape Town on 14 September 2011. 3 Kwaito is a musical genre that developed in Black townships.4 The reference to “any” is in italics as the options available to youths of colour in my immediate neighborhood were limited to the socio-economic environment that preceded independence around 1994. In short, a rural person of colour would not have the same opportunities as a white South African youth

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“It’s [now] 1995. South Africa is still on a psychedelic high following the watershed

general elections of April 1994. But the shaky foundation on which the racial

honeymoon is built soon come crashing down when a rising kwaito star gets racially

abused in Pietersburg (now Polokwane) by being called a [K]affir. The horrific incident

spurns a national hit … when he releases the kwaito hit ‘Nee baas, don’t call me

kaffir’.”5

Despite the incident mentioned above, and undeterred by general racist remarks that I

had previously encountered outside the employment environment or in the media, I

attended my first interview and thereafter secured my first paying position. The legacy

of apartheid, however, could not release me from its shackles when my supervisor and

team leader thought it funny to ask: “Do you know any Kaffirs Koelie?”6

A study of the law has now taught me that our courts have recognized South Africa’s

general robust workplace by stating the following:

“A modern workplace is not a heavenly garden of smiling buddhas focused on the welfare of others ... [m]ore often than not it presents the contrary picture of a highly stressful and robust environment…”7

The question, however, is the extent to which one may express oneself freely and

clearly while delineating robust comments from racist behaviour. In light thereof, the

incidents mentioned above capture the tension in South Africa prior to legislation being

adopted and enforced to prevent discriminatory behaviour. The introduction is thus

intended to provide a backdrop for the study that follows. The writer anticipates that a

convincing and interesting case is made as to why the research that follows will

supplement labour law jurisprudence.

which was privileged enough to attend a private school of choice. 5 Mofokeng “King of Kwaito still on his Throne” (2012-03-16) City Press 23; Kwaito is a musical genre that developed in Black townships.6 A coolie (alternatively spelled cooli, cooly, quli, Koelie, and other such variations), during the 19th and early 20th century, was a term for a locally sourced unskilled labourer hired by a company, mainly from the Indian subcontinent. It is used varyingly as a legal inoffensive word (for example, in India for helpers carrying luggage in railway stations) and also used as a racial slur in Africa for certain people from Asia, particularly in South Africa.7 Commissioner Marcus in Visser and Amalgamated Roofing Technologies t/a Barloworld (2006) 27 ILJ 1567 (CCMA) 1569.

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2 Problem Statement

South Africa’s legal system is based in Roman-Dutch law or, in other words, the

common law. English law, together with court decisions and legislative enactments,

also plays a pivotal role in the legal system. A hybrid or mixed system therefore exists

in South Africa comprising of Roman-Dutch law, amended by customary law and

legislation, decisions of courts as well as English law.8 The Constitution of the Republic

of South Africa, 1996 is the highest law of the land with subsequent legislation being

passed to give effect to same. The stare decisis doctrine9 finds application in South

African law, as does the law of delict and the doctrine of vicarious liability. Of particular

importance for labour law are its sources, being the common law, the provisions of the

contract of employment, legislation, collective agreements, international labour-law

standards, customs and practice and, lastly, constitutional provisions.10

The traditional classifications of race groups in South Africa are Black African,

Coloured, White, India/Asian and others. Four legal mechanisms exist to protect

employees within the workplace. These mechanisms exist in the protection against

unfair discrimination, protection against unfair labour practices, the setting of minimum

standards11 and the protection against unfair discrimination.12 South African legislation

provides for both formal equality and substantive equality. Formal equality refers to

equality in treatment, whereby unfair discrimination is prohibited.13 Substantive

equality refers to equality in outcome and is enshrined through the adoption of positive

measures, such as affirmative action.14 The notion of affirmative action does not form

part of this study.15

8 Smit Bullying in the Workplace: Towards a Uniform Approach in South African Labour Law LLD Thesis University of the Free State (2014).9 Latin translation meaning "to stand by that which is decided", Stare decisis is a legal principle which dictates that courts may not disregard the standard which was created: the court must uphold prior decisions. In essence, this legal principle dictates that once a law has been determined by a court of higher status (which hears and determines appeals from the decisions of the trial courts) to be relevant to the facts of the case, future cases will follow the same principle of law if they involve considerably identical facts.10 Smit Bullying in the Workplace: Towards a Uniform Approach in South African Labour Law LLD Thesis University of the Free State (2014).11 Such as the Basic Conditions of Employment Act 75 of 1997.12 See in general Basson, Christianson, Dekker, Garbes, Le Roux, Mischke and Strydom Essential Labour Law (2009) ch 6.13 See in general Basson et al Essential Labour Law ch 11.14 Ibid. 15 According to Basson et al South Africa has a history of institutionalized discrimination against various racial groups, including women and people who are disabled, and the Constitution recognizes that only a combination of these two mechanisms can help us approach genuine equality, which includes full and

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“The prohibition of unfair discrimination is one of various instruments through which the

right to equality may be protected and, ideally, even promoted.”16 The purpose of the

Employment Equity Act 55 of 1998 is to achieve equity in the workplace by promoting

equal opportunity and fair treatment in employment through the elimination of unfair

discrimination.

The court in Brink v Kitshoff17 aptly stated that:

“The policy of apartheid, in law and in fact, systematically discriminated against black people in all aspects of social life. Black people were prevented from becoming owners of property or even residing in areas classified as 'white', which constituted nearly 90% of the landmass of South Africa; senior jobs and access to established schools and universities were denied to them; civic amenities, including transport systems, public parks, libraries and many shops were also closed to black people. Instead, separate and inferior facilities were provided”18

Apartheid has undoubtedly left its mark on society. Racial slurs which are degrading

and dehumanizing were hurled as missiles at anyone deemed “worthy” to be on the

receiving end of such abuse. The answerable question simply put is whether sufficient

measures are in place to protect employees from racial slurs in the workplace and

conversely, to what extent should employers safeguard themselves from falling foul of

the law.

3 Research Questions

Since 1948, the South African Government used the legislature to enforce segregation

of different races. Racial discrimination was institutionalized during this period by the

implementation of Acts, such as the Immorality Amendment Act,19 Population

Registrations Act,20 Group Areas Act,21 Suppression of Communism Act22 and the

Native Building Workers Act.23

equal enjoyment of all rights and freedoms; See in general Basson et al Essential Labour Law ch 11.16 Dupper and Garbers “The Prohibition of Unfair Discrimination and the Pursuit of Affirmative Action in the South African Workplace” 2012 AJ 244-269.17 1996 (4) SA 197 (CC) 41.18 Ibid.19 21 of 1950.20 30 of 1950.21 41 of 1950.22 44 of 1950.23 27 of 1951.

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The political and legal revolution of the 1990s meant the end of an era in South African

society and politics in general.24 Constitutional supremacy, judicial review, a justiciable

Bill of Rights, and most importantly, democratic elections in which all adult South

Africans were allowed to vote, meant the end of legally-sanctioned racial segregation

and racism.25

As noted supra, the official end to the sanctioning of racially discriminatory laws and

policies did not, however, mean that racism and racial discrimination died a quiet and

sudden death.26 South Africa’s working environment is generally seen as fairly robust.

At the outset, and from a thorough examination of constitutional provisions, one can

conclude that everyone is equal before the law and enjoys equal protection and benefit

of the law. As a value, equality, together with other constitutional values, has to inform

the application, interpretation and limitation of all rights. The right to equality prohibits

direct and indirect unfair discrimination by the State and individuals on listed and

analogous grounds. A presumption regarding the unfairness of the discrimination

arises where a complainant makes out a prima facie case on the basis of one of the

listed grounds. A respondent may rebut the presumption of unfairness.27

Therefore despite legislation being in place to prevent discrimination within and outside

the workplace, the following questions will be posed and answered:

i. Whether the Labour Relations Act 66 of 1995 contains sufficient mechanisms

to combat racism in the workplace.

ii. Whether the Employment Equity Act 55 of 1998 contains sufficient provisions

to combat racist slurs in the workplace.28

iii. Whether the delictual actions of the wrongdoer are imputed to the employer

and/or employee, and to which extent can an employer reduce the risk of

liability.

24 South Africa held its first one-person, one-vote general election on 27th April 1994. 25 Kruger Racism and the Law: Implementing the Right to Equality in Selected South African Equality Courts PhD Rhodes University 2008.26 Ibid. 27 Bason et al Essential Labour Law 215; see also Kruger Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 106.28 S 6 (1) of the Employment Equality Act 55 of 1998 (hereafter referred to as the EEA) states that “[n]o person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.”; S 5 of the EEA places a positive duty on every employer as it states that “[e]very employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.”

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4 Aims and Objectives of the Study

In this section the research question will be considered in terms of aims and objectives.

The overall purpose of this study can clearly and concisely be summed up as

determining whether sufficient legislative protective measures exist, and to critically

assess same with reference to the employer’s liability. As mentioned supra, the aim of

the research is not to reinvent the wheel, but rather to add to the body of case law and

academic commentary that precedes this study.

For the sake of brevity, the objective of the study is to critically assess the legislative

provisions, to determine the extent of employer’s vicarious liability and, lastly to make

recommendations on any shortcomings that may exist which may have the benefit of

offering additional protection to employers.

5 Research Methodology

Labour law can be described as a system of rules regulating one aspect of modern

society, namely work or labour. The rules of labour law, like any other rules, are legally

enforceable. The sources of labour law are the Constitution of the Republic of South

Africa, 1996, international labour standards, labour legislation, collective agreements,

the common law and the employment contract.29

The study that follows is the fruit of a combination of approaches and methodologies in

order to present a study30 on racism which focuses on inter alia specific aspects of

labour legislative provisions, the law of delict, and the constitution.

In some chapters the methodology resembles a more practical approach which relies

on information sourced from case law and legislative provisions, while in others a

doctrinal or formal methodology is attempted and adopted in consideration of the law.31

29 See in general Basson et al Essential Labour Law ch 1.30 Owing to financial and time constraints it is not possible to focus on every minute aspect of the law relating to racism in the workplace. I have therefore attempted to focus on the current labour legislative provisions, the law of delict and substantive and procedural aspects related to the topic.31 Mixed-methods research is a methodology for conducting research that involves collecting, analysing, and integrating (or mixing) quantitative and qualitative research in a single study; see Tashakkori and Teddie Foundations of Mixed Methods Research: Integrating Quantitative and Qualitative Approaches in the Social and Behavioral Sciences (1998) Sage 6-10.

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In order to obtain a sound knowledge of the current legal position and to critically

analyse same, the full spectrum of theoretical resources referred to immediately above

will be drawn upon. The theoretical framework will thus prove vital in understanding the

current position before focus is placed on specific racial slurs which may exist in the

workplace. The body of case law provides a secure starting block for same. The

legislature’s response to such conduct will also be highlighted and showcased.

The study that follows therefore aims to appraise the extent of protection provided by

the legislature on both a procedural and substantive level in relation to racism

allegations. Mixed methodologies are therefore combined in order to identify

shortcomings and to propose workable improvements or changes that are in line with

the objectives of the legislature.32

6 Outline of Research

The study that follows does not claim to be a perfect study model in the employment

arena – rather, it seeks to assist with the understanding of labour law in South Africa

and to provide a clearer understanding of legislative measures currently in place to

prevent unfair discrimination. It is intended to contribute to labour jurisprudence and

not to rewrite it. This study focuses on three main aspects of law that are intertwined.

The areas of focus will thus be on constitutional provisions, labour-law provisions on

unfair discrimination and delictual liability.

The purpose of the study therefore can be said to highlight constitutional and enacted

legislative provisions in place in order to eliminate unfair discrimination, while reference

is specifically made to the development of statutory provisions in the employment

sphere. Secondly, this study will showcase delictual liability that stems from positive

acts as well as omissions on behalf of employees and employers. Moreover, focus is

placed on substantive law with a limited focus on procedural or evidentiary issues, as it

is felt by the author that the essence of the issues addressed will otherwise be diluted.

An assessment of current legislation will be assessed and recommendations and

shortcomings will be addressed.

Chapter two traces the development of labour-law jurisprudence and highlights

deficiencies in the common law, which are addressed. Chapter three provides the

32 The purpose of mixed-methodology research is that this form of research is both qualitative and quantitative research, which in combination, provide a better understanding of a research problem or issue than either research approach alone; see also in general See Tashakkori and Teddie Foundations of Mixed Methods Research: Integrating Quantitative and Qualitative Approaches in the Social and Behavioral Sciences 6-10.

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reader with an overview of legislative provisions and explores the concept of fair labour

practices. The issues relating to racism and equality are addressed, together with the

issue of litigants attempting to rely on the Constitution, rather than tailored legislative

provisions which were enacted to give effect to the Constitution. The equality enquiry

handed down by the Constitutional Court is explored as well the history of unfair

discrimination in South Africa. Chapter four addresses delictual liability, including an

employer’s vicarious liability for the delictual actions of an employee as well as the

liability for failure to prevent harm from ensuing to an employee. Chapter five involves

an analysis of case law on abusive language and racist comments in the workplace. A

further analysis is made wherein trends and cautionary notes on unfair discrimination

cases are made. Chapter six explores procedural and substantive fairness in the

dismissal of employees. Lastly, chapter seven draws a conclusion on measures

currently in place to manage workplace racism, and proposes solutions to reduce

workplace racism.

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CHAPTER 2

1 The development of South African labour law

It is imperative to trace the development of South African labour law, as much of the

development mirrors the socio-political history of South African society.33

With the discovery of gold in the late 19th century, South Africa embarked on a gradual

change from an agrarian and largely rural society to a rapidly developing industrial

society.34 Conflicts between groups in the employment sector were often racially-based

as white workers sought protection from competition by black workers.35 Several pieces

of legislation such as the Hut tax,36 Franchise and Ballot Act ,37 Glen Grey Act,38 the

Natal Legislative Assembly Bill,39 Transvaal Asiatic Registration Act,40 South Africa

Act,41 Mines and Works Act,42 Natives Lands Act,43 Natives (Urban Areas) Act,44

Immorality Act,45 Native Administrative Act,46 Representation of Natives Act,47 Native

Trust and Land Act,48 Native (Urban Areas) Consolidation Act,49 Asiatic Land Tenure

Act50 and the Prohibition of Mixed Marriages Act,51 were developed and implemented

during the same period.

33 Basson Essential Labour Law 4.34 Vettori Alternative Means to Regulate the Employment Relationship in the Changing World of Work LLD thesis University of Pretoria (2005) 137.35 Basson et al Essential Labour Law 4.36 1884.37 1892.38 1894.39 1894.40 1906.41 1909.42 1911.43 27 of 1913.44 21 of 192345 1927.46 1927.47 1936.48 1936.49 1945.50 28 of 1945.51 55 of 1949.

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However, one of the first pieces of legislation to be passed following the Rand Revolt

of 1922, was the Industrial Conciliation Act 11 of 192452 (hereafter the Conciliation Act).

The Conciliation Act,53 however, excluded employees of African origin.54

The Conciliation Act55 entrenched racial discrimination and categorization in labour

legislation as the primary focus of the enacted legislation was to protect the interests of

skilled white workers, while black workers were excluded from the ambit of labour

legislation protection.56 Furthermore, existence and activities of black trade unions

were actively discouraged and as such they did not enjoy any benefits of centralized

collective bargaining in the form of industrial councils.57

The Conciliation Act did, however, introduce principles and structures that laid the

foundation for further development of South African labour law with certain elements

echoed in legislation today.58

Ever increasing numbers of black trade unions resulted in mounting pressures and

conflict. This led to a Commission of Inquiry being appointed.59 The commission, more

commonly known as the Wiehahn Commission, led to the removal of race as a

requirement for access to statutory collective-bargaining structures.60 One of the most

important reforms introduced was the establishment of the Industrial Court which has a

wide discretion to measure the conduct of a party against an even wider concept of

“unfair labour practice”.61

52Basson et al Essential Labour Law 4; Vettori Alternative Means to Regulate the Employment Relationship in the Changing World of Work LLD thesis University of Pretoria (2005) 3.53 Industrial Conciliation Act 11 of 1924; The Act further established voluntary and centralized collective bargaining forums namely, industrial councils.54 Basson et al Essential Labour Law 6; Vettori Alternative Means to Regulate the Employment Relationship in the Changing World of Work LLD thesis University of Pretoria (2005) 3.55 11 of 1924.56 Grogan Collective Labour Law (2007) 4.57 Basson et al Essential Labour Law 5; Vettori Alternative Means to Regulate the Employment Relationship in the Changing World of Work LLD thesis University of Pretoria (2005) 137.58 Basson et al Essential Labour Law 4: M-S Vettori Alternative Means to Regulate the Employment Relationship in the Changing World of Work LLD thesis University of Pretoria (2005) 3.59 Grogan Collective Labour Law 4; Basson et al Essential Labour Law 6.60 Professor Wiehahn recommended sweeping changes by Government that included legal recognition of Black trade unions and migrant workers, abolition of statutory job reservation, retention of the closed-shop bargaining system, the creation of a National Manpower Commission and the Industrial Court to resolve industrial litigation; M-S Vettori Alternative Means to Regulate the Employment Relationship in the Changing World of Work LLD thesis University of Pretoria (2005) 137; the Wiehahn Commission was appointed in 1977 and completed its report in 1979.61 Grogan Collective Labour Law 4; Basson et al Essential Labour Law 6; M-S Vettori Alternative Means to Regulate the Employment Relationship in the Changing World of Work LLD thesis University of Pretoria (2005) 3.

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By 1979 trade unions, representing black employees, gained access to institutions

established by labour legislation, and the Industrial Court was created.62 Even though

black trade unions were given the right to be registered as a result of the

recommendations of the Wiehahn Commission, they were hesitant to join their white

counterparts as they enjoyed tremendous support at plant level, rather than at an

industrial level.63

During the early 1990s the Education Labour Relations Act,64 the Public Service

Relations Act65 and the Agricultural Labour Relations Act66 were passed. What this

meant was that collective labour law and the protection of employees by the Industrial

Court were effectively extended to State and agricultural employees.67

The watershed year of 1994 ushered in a new democratic political dispensation into

South Africa in the form of a constitutional democracy. As a consequence thereof

South Africa regained membership of the International Labour Organization.68 In 1995

the Labour Relations Act69 (hereafter the LRA) was passed (which became operable on

the 11th of November 1996).70 Although the process of the protection of trade unionism

and statutory collective bargaining was almost complete in 1993, there was

nevertheless increased pressure to rewrite labour legislation. A new political

dispensation was introduced into South Africa and a supreme Constitution containing a

Bill of Rights became the cornerstone of the judicial system.71 As previously mentioned,

South Africa also rejoined the International Labour Organization, and it decided to

sever all ties with the legislation of the past and to promulgate a new Labour Relations

Act.72 In the years that followed, legislation, such as the Basic Conditions of

62 Vettori Alternative Means to Regulate the Employment Relationship in the Changing World of Work LLD thesis University of Pretoria (2005) 137.63 Collective bargaining in South Africa takes a wide variety of forms and can take place at various levels or forums. It may take place at “plant level” or “factory level”, in others words on the level of a single factory, office or mine. It may take the form of “enterprise-level bargaining” in instances where collective bargaining occurs in all factories or braches of a single employer in respect of a specified category of employees. Collective bargaining may finally take place at “industry level”. This usually takes place between one or more unions and employers active in a specific industry; Vettori Alternative Means to Regulate the Employment Relationship in the Changing World of Work LLD thesis University of Pretoria (2005) 137; See also Grogan Collective Labour Law 4.64 146 of 1993.65 105 of 1994.66 50 of 1994.67 The main deficiency of the 1957 Labour Relations Act 5 of 1957 was that farm workers, public-sector employees and agricultural workers were excluded from the ambit of the Act.68 Basson et al Essential Labour Law 8; Grogan Collective Labour Law 6.69 66 of 1995.70 Vettori Alternative Means to Regulate the Employment Relationship in the Changing World of Work LLD thesis University of Pretoria (2005) 3.71 Botha Statutory Interpretation: An Introduction for Students (2005) 4.72 66 of 1995

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Employment Act 75 of 199773 (hereafter BCEA) and the Employment Equity Act of 55

of 199874 (hereafter EEA) were also promulgated.75 The Minister of Labour has recently

tabled Parliamentary Bills to amend the LRA and the BCEA.

2 Common Law and its Deficiencies

Since the relationship between employee and employer is based on a contract of

employment, the regulation, formation and termination thereof are to a large extent left

to the common-law principles of freedom to contract.76 One of the main deficiencies of

this concept is that freedom to contract fails to protect the needs of employees, as the

relationship between employee and employer is inherently unequal.77 Of particular

importance is the common-law rule that an employer may terminate the contract of

employment by merely giving the employee the agreed or prescribed notice.78 The

deficiencies in the common law are further exacerbated by the power relationship

between stakeholders at times being extremely complex. Conversely, under the

current labour-law regime, evidence has shown a shift in power as an employer may

be in need of skilled workers who now stand a stronger chance at negotiating higher

salaries or more favourable terms of employment. 79 Furthermore, certain employees

opt out of long term employment contracts, electing rather to provide services to their

employers through becoming entrepreneurs with their very own start-up businesses.80

2 1 Addressing deficiencies

73 The BCEA provides for minimum standards of employment which may be changed under certain circumstances. An employee and employer may agree to more favourable conditions than set out in BCEA.74 The EEA provides mechanisms to eliminate discrimination and a means to promote policies of affirmative action.75 Grogan Workplace Law (2009) 6.76 Basson et al Essential Labour Law (2009) 8.77 Employers are typically owners of large businesses, wielding greater power than individual employees. The relationship between employee and employer is thus unequal. This, in turn, gives weight to the argument that freedom to contract is a fiction.78 Govindjee, Vrancken, Holnes, Horsten, Killander, Mpedi, Olivier, Stuart, Stone and Van der Walt Introduction to Human Rights Law (2009) 146.79 Basson et al Essential Labour Law 9.80 Ibid.

17

One of the most important ways that the deficiencies are addressed is through the

overriding effect of legislation.81 One of the chief ways that the LRA addresses the

common-law deficiency is through the provisions aimed at job security; the most

important of these aim at protection against unfair dismissals.82

Another example of legislation addressing the common law is in the form of the EEA.

The EEA firstly prohibits unfair discrimination in the workplace and places employers

under a duty to ensure that workplaces are free from unfair discrimination.83 The

second focus of attention in the EEA is on affirmative action.84 The EEA outlines its

purpose and measures required of the employer for the implementation thereof.85

Moreover, the BCEA makes up for deficiencies by setting minimum conditions for

employment.86

Addressing the deficiencies in common law is not limited to enacting and promulgating

legislation, but also the creation of specialist tribunals containing tailor-made

procedures to enforce fundamental principles. It has been contended that ordinary

courts are steeped in common law, whereas labour-law institutions have procedures

aimed at speed and conciliation, rather than being adversarial in nature.87 The LRA

thus established the Commission for Conciliation, Mediation and Arbitration (CCMA),

the Labour Court and the Labour Appeal Court.88 S157 (1) of the LRA89 states that the

Labour Court has exclusive jurisdiction in respect of matters that are to be determined

by the court. However, should a contractual dispute arise, one may either approach the

High Court, on the basis of its inherent powers, or the Labour Court, on the basis of

S77 of BCEA,90 in order to resolve disputes.91

81 Basson et al Essential Labour Law 9.82 While the emphasis seems to be on collective labour law, as opposed to individual labour law, authors such as Grogan and Vettori suggest that it is the hope of the legislature to provide a framework that would result in employers and trade unions together setting conditions for work and resolving their own disputes, with the end result being social justice and overall economic development.83 Basson et al Essential Labour Law 9.84 Govindjee et al Introduction to Human Rights Law 156.85 S2(b) Employment Equity Act; Basson et al Essential Labour Law 986 Basson et al Essential Labour Law 9.87 Govindjee et al Introduction to Human Rights Law 146; Basson et al Essential Labour Law 9.88 The labour institutions act parallel to ordinary courts, and either the Labour Court or the High Court may be approached to resolve disputes.89 66 of 1995.90 75 of 1997.91 Govindjee et al Introduction to Human Rights Law 147; S157(1) LRA.

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CHAPTER 3

1 Legislative Provisions

Labour rights, such as the right to fair labour practices, freedom of association, the

right to engage in collective bargaining, organizational rights and the right to strike are

enshrined in section 23 of the Constitution of the Republic of South Africa, 1996

(hereafter the Constitution).92

Section 23 of the Constitution entitled “labour relations” states –

1. Everyone has the right to fair labour practices. 2. Every worker has the right

a. to form and join a trade union; b. to participate in the activities and programmes of a trade union;

and c. to strike.

3. Every employer has the right a. to form and join an employers' organisation; and b. to participate in the activities and programmes of an employers'

organisation. 4. Every trade union and every employers' organisation has the right

a. to determine its own administration, programmes and activities; b. to organise; and c. to form and join a federation.

5. Every trade union, employers' organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).

6. National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).

2 Scope of Section 23

Section 23(1)93 states that everyone has the right to fair labour practices, whereas

section 23(2)94 holds that every worker has the right to freedom of association,

organizational rights, the right to strike and the right to engage in collective

bargaining.95 It would seem then that the scope of protection regarding fair labour

92 Unless otherwise stated, all references in this study refer to the final Constitution of the Republic of South Africa, 1996; Govindjee et al Introduction to Human Rights Law 145; Currie and De Waal The Bill of Rights Handbook (2005) 499.93 Constitution of the Republic of South Africa, 1996.94 Ibid.95 Currie and De Waal The Bill of Rights Handbook 499; Govindjee et al Introduction to Human Rights Law 148.

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practices is limited to employees who may rely also on provisions in the Labour

Relations Act 66 of 1995 (hereafter the LRA), whilst employers rely directly on section

23(1) of the Constitution.96 As will be further discussed, various pieces of legislation

have been enacted to give effect to the rights enshrined in section 23 of the

Constitution.97

2 1 What do fair labour practices entail?

Section 186(2) of the LRA defines unfair labour practices as follows –

“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving –

(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;

(b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;

(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and

(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.

The right to fair labour practices has its origin in the Industrial Court that was

established following the Wiehahn Commission recommendations in the late 1970s.98

The Industrial Court initially chose not to define precisely what it understood by the

concept fair labour practices.99 The Industrial Court did, however, say that fairness was

something more than lawfulness; this meant that, even though conduct was lawful, it

was not necessarily fair.100 The concept of unfair labour practice was initially defined as

including any conduct by employers, employees or their organizations which the

Industrial Court regarded as falling within the definition of the term. Prior to 1995 the

definition of unfair labour practices was regarded as open-ended. The 1995

legislation, however, provides for a definition and moved away from the open-ended 96 Govindjee et al Introduction to Human Rights Law 148; Du Doit, Godfrey, Cooper, Giles, Cohen, Conradie and Steenkamp Labour Relations Law 6ed (2015) 539.97 Govindjee et al Introduction to Human Rights Law 145; S 1(a) LRA.98 Currie and De Waal The Bill of Rights Handbook 501; Basson et al Essential Labour Law 5; Vettori Alternative Means to Regulate the Employment Relationship in the Changing World of Work LLD thesis University of Pretoria (2005) 3.99 Currie and De Waal The Bill of Rights Handbook 503; Du Doit, et al Labour Relations Law 539.100 Council of Mining Unions v Chamber of Mines of SA (1985) 6 ILJ 293 (IC) 295; Currie and De Waal The Bill of Rights Handbook 503.

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notion of unfair labour practice and set out to give effect to the constitutional right to fair

labour practices by codifying the main kinds of unfair labour practices distilled from the

body of case law that preceded it. In 2002 a list was incorporated into the LRA as

section186 (2). By virtue of the fact that the word “involving” is used, unfair labour

practices are limited to only those mentioned in the list, and arbitrators or the Labour

Court must therefore apply these provisions to disputes. 101 The consequence is that

the definition is no longer open-ended or in other words is now a numerus clausus.102

What constitutes an unfair labour practice is now codified in the LRA103, and every

employee has the right not to be subjected to an unfair labour practice.104 To succeed

in an action based on an alleged unfair labour practice, an employee must prove that

the conduct or practice of the employer falls within the terms expressly listed in the

definition.105

2 2 Scope of protection from unfair labour practices under the LRA

An unfair labour practice is any unfair act or omission that arises between an employee

and employer.106 The scope of protection from unfair labour practices under the LRA is

limited in two ways.107 Firstly, only employees are protected108 and secondly, unfair

labour practices are limited to conduct that specifically constitutes an unfair labour

practice.109 With regard to the former point, it appears that employees cannot commit

unfair labour practices against their employers.110 To stress the latter point, unless the

conduct falls within the scope of one of the types of conduct listed in section 186(2)111,

it would simply not amount to an unfair labour practice – even trade unions cannot

101 Currie and De Waal The Bill of Rights Handbook 501; Basson et al Essential Labour Law 5; Vettori Alternative Means to Regulate the Employment Relationship in the Changing World of Work LLD thesis University of Pretoria (2005) 3.102 Numerus clausus is a Latin term that means "closed number" or closed list.103 Basson et al Essential Labour Law 191; Du Doit, et al Labour Relations Law 539.104 S185(b) LRA.105 Nawa v Department of Trade and Industry 1998 (7) BLLR 701 (LC) 703; Grogan Workplace Law 73.106 S186 LRA.107 Vettori Alternative Means to Regulate the Employment Relationship in the Changing World of Work LLD thesis University of Pretoria (2005) 315.108 Basson et al Essential Labour Law 192; S 213 of the LRA defines an employee as “(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and (b) any other person who in any manner assists in carrying on or conducting the business of an employer”.109 Basson et al Essential Labour Law 193; Currie and De Waal The Bill of Rights Handbook 504.110 Grogan Workplace Law 75; National Entitled Workers Union v Commission for Conciliation Mediation and Arbitration and Others (2007) 28 ILJ 1223 (IC)111 LRA; Du Doit, et al Labour Relations Law 539.

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commit unfair labour practices against an employer. 112 In this regard it is important to

note that the list of unfair labour practices mentioned in section 186(2)113 is exhaustive

and relates only to disputes of rights and not a dispute of interests.114

Furthermore, section 186(2)115 refers to unfair conduct which is a wider concept than

unfair discrimination.116 Grogan contends that the distinction between unfair conduct

and unfair discrimination is necessary as it ensures that the employee refers the

dispute to the correct forum.117 Employees who allege that they have been the victims

of discrimination, as defined in the Constitution118 and the Employment Equity Act,

must refer their dispute to the Labour Court or the civil courts for adjudication, unless

they agree to arbitration. Employees alleging they are victims of unfair labour practices,

as defined in section 186(2), must refer their disputes for arbitration under the LRA.119

2 3 Reliance on Constitution rather than LRA

According to Smit the Constitution120 is an obvious source to search for the existence of

an obligation on employers to protect employees in the workplace. The rights to dignity

of the person, security and fair labour practices seem like obvious places to start.121

The Constitution aims to protect all human beings, irrespective of race, creed or sex

through the right to pursue both material well-being and spiritual development in

conditions of freedom and dignity, in economic security and equal opportunity.122

The question often arises whether an employee can rely directly on section 23(1) of the

Constitution if the conduct complained of does not fall within the ambit of section

186(2) of the LRA. From my limited experience I would assume that litigants would

112 Basson et al Essential Labour Law 193; Nawa v Department of Trade and Industry 1998 (7) BLLR 701 (LC) at 703; Vettori Alternative Means to Regulate the Employment Relationship in the Changing World of Work LLD thesis University of Pretoria (2005) 315. 113 LRA; see also Du Doit, et al Labour Relations Law 539.114 Essential Labour Law 193; A dispute of right refers to already existing rights while a dispute of interest refers to the creation of new rights where no such right existed. 115 LRA; see also Du Doit, et al Labour Relations Law 539.116 Grogan Workplace Law 10 74.117 Ibid.118 Constitution of the Republic of South Africa, 1996119 Grogan Workplace Law 74.120 The Constitution of the Republic of South Africa, 1996.121 D M Smit Bullying in the Workplace: Towards a Uniform Approach n South African Labour Law LLD Thesis University of the Free State (2014); Kruger Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts PhD Rhodes University (2008) 150.122 See Basson et al Essential Labour Law 215; Smit Bullying in the Workplace: Towards a Uniform Approach n South African Labour Law 153.

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prefer a litigation path that would follow the path of least resistance. As a point of

departure, the LRA was enacted to give effect to the fundamentally enshrined right to

fair labour practices as contained in section 23 (1) of the Constitution.123

The principle of avoidance states that, where it is possible to decide a case without

reaching a constitutional issue, then that is the course which should be followed.124 It

follows then that one may not directly rely on the Constitution where there is legislation

giving effect to that right,125 unless the constitutionality of the legislation is also

challenged.126 The court in SANDU v Minister of Defence127 held that “a litigant may not

bypass the provisions of the Labour Relations Act, 66 of 1995, and rely directly on the

Constitution without challenging the provisions of the [LRA] on constitutional

grounds.”128

Public-sector employees however, successfully placed direct reliance on the

Constitution to challenge practices not covered by the LRA.129 Similarly, courts have

been sympathetic to the plight of employees seeking direct reliance on the Constitution

on the basis that labour legislation affords limited protection.130 For instance, the

applicants in Fredericks v MEC for Education and Training Eastern Cape131

successfully based a claim on their employer’s decision not to approve a voluntary

severance package on Constitutional provisions, rather than placing reliance on the

LRA.132 The applicants, all teachers in the employ of the Eastern Cape Department of

Education, applied for voluntary retrenchment packages, but had their applications

refused.133 They approached the Eastern Cape High Court for an order setting aside

the refusal of their applications and an order that the respondents approve their

applications for voluntary retrenchment packages.134

123 Govindjee et al Introduction to Human Rights Law 148; Grogan Workplace Law 74; Basson et al Essential Labour Law 195.124 S v Mhlungu and Others 1995 (3) SA 1 (CC) 59; National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2002 SA 1 (CC) 21.125 Basson et al Essential Labour Law 195.126 Ibid.127 2007 (8) BCLR 863 (CC) 53.128 Ibid.129 Simela & Others v MEC for Education, Province of the Eastern Cape 2001 (9) BLLR 1085 (LC)130 Simela & Others v MEC for Education, Province of the Eastern Cape 2001 (9) BLLR 1085 (LC); Piliso v Old Mutual Life Assurance Co SA Ltd (2007) 28 ILJ 897 (LC).131 2002 (2) BLLR 119 (CC).132 The applicants successfully based their employer’s decision not to approve a voluntary severance package on s 9 and s 33 of the Constitution rather than on provisions in the LRA.133 Fredericks and Others v MEC for Education and Training, Eastern Cape and Others 2002(2) SA 693 (CC) at par 1-4 (hereafter Fredericks).134 Fredericks at par 1-4.

23

A full bench of the High Court took the view that the matter fell within the terms of

section 24 of the LRA, in that it concerned the interpretation or application of a

collective agreement, and held that it had no jurisdiction over the dispute, which

instead, had to be dealt with by the Commission for Conciliation, Mediation and

Arbitration (the CCMA).135

The applicants sought leave to appeal in the Constitutional Court, arguing that the High

Court did have jurisdiction to determine the dispute which raised a constitutional

matter.

In her judgment, O’Regan J, for a unanimous Court held that the claim raised by the

applicants is based on sections 9136 and 33137 of the Constitution and does raise a

constitutional matter.138 She also held that the dispute raised by the applicants is

covered by the provisions of the LRA, although it arose from an agreement concluded

in terms of earlier legislation, the Education Labour Relations Act, 1993.139

The Court ruled that section 24 of the LRA cannot exclude the jurisdiction of the High

Court to determine constitutional matters.140 That jurisdiction is entrenched by section

169 of the Constitution, and may only be ousted in circumstances where Parliament

assigns the determination of the constitutional matter to a court of similar status to a

High Court.141

The Court further held that the CCMA was not a court similar in status to the High

Court.142 There being no other provision in the LRA purporting to assign exclusive

jurisdiction in the matter to the Labour Court, the Constitutional Court concluded that

the High Court did have jurisdiction in this case and that the High Court had erred in

reaching the opposite conclusion.143 The application for leave to appeal was therefore

granted and the appeal upheld with the matter being referred back to the High Court to

be dealt with in terms of the Constitutional Court’s finding.144

135 Fredericks at par 1.136 The right to equality in the Constitution. 137 The right to administrative justice in the Constitution. 138 Fredericks at par 4 and 33.139 Fredericks at par 13 – 34.140 Fredericks at par 33.141 Fredericks at par 12.142 Fredericks at par 24.143 Ibid.144 As per the order granted in the Constitution Court, the Constitutional Court found that the High Court did indeed have jurisdiction to hear the matter as the claim infringed the applicant’s right to dignity and just administrative action.

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Where a claim merely arises from a dismissal for poor work performance, a matter

routinely dealt with in labour forums, the Constitutional Court in Chirwa v Transnet

Ltd145 held that the High Court did not have jurisdiction to entertain such a matter as

alternative forums had not been exhausted.146 Lastly, the Constitutional Court in Gcaba

v Minister of Safety & Security147 decided whether a decision by an employer not to

promote and appoint an employee could be heard by the High Court. The crisp issue

before the Court was whether provisions in the LRA or Constitution were applicable.148

As the applicant seemed to lodge his claim in numerous forums, the Court reiterated

that forum shopping by an employee faced with a negative decision was undesirable.149

Where the LRA structures had been specifically created for dealing with labour

matters, the purpose-built legislative regime should govern the matter.150

Following from the previous points, forum shopping by litigants is not desirable.151

Once a litigant has chosen a particular cause of action and system of remedies (for

example, the structures provided for by the LRA) he or she should not be allowed to

abandon that cause as soon as a negative decision or event is encountered. One may

not want litigants to “relegate” the LRA dispensation because they do not “trust” its

structures to do justice as much as the High Court could be trusted. After all, the LRA

structures were created for the very purpose of dealing with labour matters, as stated

in the relevant parts of the two majority judgments in Chirwa, referred to above.152

For legal puritarians,153 the decisions supra are messy: law should not be messy; it is

neat. It is made up of separate branches and sub-branches with each branch or sub-

branch being autonomous. There are no overlaps. It would therefore appear that only

once a cause of action is based on the Constitution or in the event that a specific

section of the LRA is in conflict with the Constitution, may an employee whose rights

have been infringed, rely on the Constitution rather than on the LRA.154

3 Equality

145 2008 (2) BLLR 97 (CC).146 Ibid.147 (2010) 31 ILJ 296 (CC).148 Gcaba v Minister of Safety & Security supra par 19.149 Gcaba v Minister of Safety & Security supra par 57.150 Gcaba v Minister of Safety & Security supra par 29.151 See, for example, Chirwa and Gcaba para 52.152 Gcaba par 57.153 Puritarianism is regarded as a philosophy based on pure logic and theory.154 See in general Smit Bullying in the Workplace: Towards a Uniform Approach n South African Labour Law 153.

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As mentioned supra the Constitution aims to protect all human beings, irrespective of

race, creed or sex through the right to pursue both material well-being and spiritual

development in conditions of freedom and dignity, in economic security and equal

opportunity.155

In order to fully understand the concept of equality, a distinction between substantive

and formal equality is made. Substantive equality requires of the law to ensure equality

of outcome and permits the implementation of legislative and other measures to

protect or advance persons, or categories of persons, disadvantaged by unfair

discrimination.156 Formal equality requires that all persons are equal bearers of rights

and does not take actual social and economic disparities between groups into account.

Inequality is thus seen as an aberration which can be eliminated by extending the

same rights and entitlements to everyone in accordance with the same neutral norm or

standard of measurement. 157 The starting point for equality jurisprudence in South

Africa is section 9 of the Constitution.158

Section 9 of the Constitution states as follows –

1. Everyone is equal before the law and has the right to equal protection and benefit of the law.

2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

The Constitution secures equal protection and benefit of the law and equality before

the law for everyone, and it prohibits unfair discrimination on a variety of grounds,

including race, ethnicity and colour.159 Generally speaking, all South Africans, 155 See Basson et al Essential Labour Law 215; Smit Bullying in the Workplace: Towards a Uniform Approach n South African Labour Law 153.156 Currie and De Waal The Bill of Rights Handbook 233; s 9 (2) of the Constitution.157 Currie and De Waal The Bill of Rights Handbook 233.158108 Govindjee et al Introduction to Human Rights Law 71.159 S 9 of the Constitution; equality as a value resonates through the Bill of Rights with s 7, s 36 and s 39 mentioning equality, as well as the values of human dignity and freedom. S 7 of the Constitution reads: “Rights (1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The State must respect, protect, promote and fulfil the rights in the Bill of Rights. (3) The rights in the Bill of

26

irrespective of race, ethnicity or colour are considered equal.160 This means that

Government, through its actions and in law, may not infringe upon the rights of

individuals on any of the prohibited grounds provided for in section 9 of the

Constitution, and is obliged to promote the attainment of equality in South African

society.161 To achieve this ideal of equality, racism which manifests itself in various

forms in society, numerous institutions and various workplaces needs to be

eradicated.162

The preamble of the Constitution introduces equality into South Africa’s constitutional

framework by referring to “a democratic and open society in which government is

based on the will of the people and every citizen is equally protected by law.”163

Moreover, section 1 lists the achievement of equality and non-racialism and non-

sexism among the founding values of our constitutional democracy.164 At the outset,

and from a thorough examination of constitutional provisions, one can conclude that

everyone is equal before the law and enjoys equal protection and benefit of the law. As

a value, equality, together with other constitutional values, has to inform the

application, interpretation and limitation of all rights. The right to equality prohibits

direct and indirect unfair discrimination by the State and individuals on listed and

analogous grounds. A presumption regarding the unfairness of the discrimination

Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill; s 36 reads: Limitation of rights (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom, taking into account all relevant factors, including-- (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights; S 39 reads: Interpretation of Bill of Rights (1) When interpreting the Bill of Rights, a court, tribunal or forum – (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.” 160 Kruger Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 150-155.161 Smit Bullying in the Workplace: Towards a Uniform Approach in South African Labour Law 2; see also Bason et al Essential Labour Law 215; see also Kruger Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 150-155.162 Ibid. 163 Smit Bullying in the Workplace: Towards a Uniform Approach n South African Labour Law 151; see also Bason et al Essential Labour Law 215.164 S1 of the Constitution reads: “(1) The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms. (b) Non-racialism and non-sexism. (c) Supremacy of the Constitution and the rule of law. (d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”

27

arises where a complainant makes out a prima facie case on the basis of one of the

listed grounds. A respondent may rebut the presumption of unfairness.165

Early pronouncements on equality in the Constitutional Court focused on equality in

relation to fair-trial procedures and requirements. The “new concept” marked a definite

break with the past.166 For the first time, the Court addressed equal protection and

equal treatment before the law in S v Makwanyane167 albeit in a matter which

established that capital punishment was inconsistent with the commitment to human

rights expressed in the Interim Constitution.168 According to Smit, general remarks

about equality and its place within the constitutional framework was made, however, no

pronouncements on discrimination featured in the judgment.169

The Court in Brink v Kitshoff170 (hereafter Brink) unanimously held that equality and

non-discrimination are highly regarded goals in foreign and international law.171 Despite

the judgment dealing with a challenge against a statutory provision in which policies

ceded by spouses were not subject to the same restrictions, the judgment is important

as it was the first judgment on unfair discrimination which laid the Courts’ foundation

for further expansion.172 The Constitutional Court in Brink further held that the policy of

apartheid systematically discriminated against black people in all aspects of social

life.173 What was required of legislation was not only formal equality174 but also

165 Bason et al Essential Labour Law 215; see also Kruger Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 106.166 Currie and De Waal The Bill of Rights Handbook 211; See also in general Govindjee et al Introduction to Human Rights Law ch 4.167 S v Makwanyane and Another 1995 (3) SA 391 (CC) was a landmark 1995 judgement of the Constitutional Court of South Africa that established that capital punishment was inconsistent with the commitment to human rights expressed in the Interim Constitution.168 The interim Constitution of the Republic of South Africa 200 of 1993.169 Smit Bullying in the Workplace: Towards a Uniform Approach in South African Labour Law 151; see also Bason et al Essential Labour Law 103.170 Brink v Kitshoff NO 1996 (4) SA 197 (CC); section 44 of the Insurance Act of 1943 deprived married women, but not married men, of all or some of the benefits of life-insurance policies made in their favour by their husbands. The Constitutional Court held that section 44 discriminated against married women on the basis of sex and marital status, and was thus a violation of the equality clause. The Court held that, since the common-law rule prohibiting donations between spouses had been abolished, the argument that the section provided married women with a benefit was no longer applicable. The Court also rejected the argument that the section was necessary to prevent collusion between spouses: such collusion could as easily occur where husbands rather than wives were beneficiaries. The Court ruled that sections 44(1) and 44(2) were invalid as from 27 April 1994, but exempted payments already made on the strength of those provisions.171 Brink v Kitshoff NO par 34.172 Brink v Kitshoff NO par 39; see also Kruger Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 106.173 Ibid.174 Formal equality is sometimes referred to as “equality in treatment” and is protected in section 9(3) and 9(4) of the Constitution through the prohibition of unfair discrimination.

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substantive equality175 as past instances of unfair discrimination have ongoing negative

consequences.176 The Constitutional Court in Minister of Finance v Van Heerden177

held that the “[c]onstitution’s goal of creating a non-racial and non-sexist egalitarian

society, underpinned by human dignity, the rule of law, a democratic ethos and human

rights informs a conception of equality that goes beyond mere formal equality and

mere non-discrimination which require identical treatment, whatever the starting point

or impact.”178

The following two judgments which were interestingly handed down on the same day

also contributed to equality jurisprudence. According to Kruger, the judgments in

Prinsloo v Van der Linde179 (hereafter Prinsloo) and President of the Republic of South

Africa v Hugo180 (hereafter Hugo) contributed to a uniform approach to equality.181 The

Constitutional Court in Prinsloo for instance focused on context being all important in

determining whether differentiation amounts to unequal treatment or discrimination in

the constitutional sense.182 The majority identified differentiation to be “at the heart of

equality jurisprudence in general and … the section 8 right or rights in particular.”183

The predecessor to the current equality clause contained in section 9 of the

Constitution distinguished between discrimination that is unfair and discrimination that

is not unfair.184

175 Substantive equality is sometimes referred to as “equality in outcome”. Substantive equality in section 9(2) of the Constitution is promoted through the adoption of positive measures to empower previously disadvantaged groups in South Africa.176 Govindjee et al Introduction to Human Rights Law 73.177 2004 (6) SA 121 (CC).178 2004 (6) SA 121 (CC) 29.179 Prinsloo v Van der Linde 1997 (3) SA 1012 (CC); This case dealt with the validity of s 84 of the Forest Act 122 of 1984 which aims to prevent and control veld and forest fires by creating fire-control areas where schemes of compulsory fire control are established. As such, owners of land outside of the fire-control areas were not obliged to institute fire-control measures, but they were encouraged to do so by a number of means. S 84 created a presumption of negligence by the landowner in respect of fires occurring in non-controlled areas. The Forest Act differentiated between owners in fire-controlled areas and non-fire controlled areas. The court in essence found that the differentiation did not amount to unfair discrimination as it was a rationally connected to the legitimate Government purpose of preventing veld fires. 180 President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC); This case centred on the President who had pardoned and granted release to prisoners in certain categories, one of the categories was certain “mothers with minor children under the age of twelve (12) years.” Hugo, a single father of a child under twelve, challenged the constitutionality of the pardon in the court a quo, saying that it unfairly discriminated against him and his son on the ground of sex or gender in violation of s 8 of the interim Constitution. The court a quo found in favour of Hugo. The President and the Minister of Correctional Services appealed against the judgment. The majority of the Court held that, while the legislature discriminated against Hugo on the basis of sex, this discrimination was not unfair. Regarding the impact upon fathers of young children who were not released, the majority of the Court held that, although the pardon may have denied men an opportunity it afforded women, it could not be said that it fundamentally impaired their sense of dignity and equal worth. Therefore, the pardon was not unfairly discriminatory. 181 Kruger Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 108.182 Prinsloo v Van der Linde par 17, 20 and 21.183 Prinsloo v Van der Linde par 23-25. 184 Ibid.

29

According to Currie and De Waal both section 8 of the Interim Constitution and section

9 of the 1996 formulation grant a right to equal protection and benefit of the law and a

right to non-discrimination.185 The only addition in the latter’s provision are the

inclusions of new grounds for discrimination such as pregnancy, marital status and

birth, together with the horizontal protection against discrimination from fellow

individuals.186

The latter is necessary in any modern society and involves classification that is

rational, non-arbitrary and that does not manifest “naked preferences”.187 The

Constitutional Court in Hugo held that in order to determine whether a differentiation is

unfair one must look at that group which had been disadvantaged and the nature of the

power in terms of which the discrimination was effected, as well as the nature of the

interests which have been affected by the discrimination.188

According to Kruger, the Hugo and Prinsloo cases complement each other as the

judiciary took the legislatures prohibition of unfair discrimination as its point of

departure.189 Of crucial importance to the determination of unfairness is a consideration

of the impact of the discrimination on the complainants in the context of the case.190

As Goldstone J, put it:

“Each case, therefore, will require a careful and thorough understanding of the impact

of the discriminatory action upon the particular people concerned to determine whether

its overall impact is one which furthers the constitutional goal of equality or not.”191

Finally the Court in Harksen v Lane192 (hereafter Harksen) determined the substantive

test to determine whether the right to equality had been infringed or threatened by

conduct or legislation.193 The line of enquiry involves the following: one would need to

185 Currie and De Waal The Bill of Rights Handbook 215; see also in general Govindjee et al Introduction to Human Rights Law ch 4.186 Ibid.187 Prinsloo v Van der Linde par 23-25.188 President of the Republic of South Africa v Hugo par 41.189 Kruger Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 109.190 Ibid.191 President of the Republic of South Africa v Hugo par 41.192 Harksen v Lane 1997 (11) BCLR 1489 (CC); See also Govindjee et al Introduction to Human Rights Law ch 4.193 Govindjee et al Introduction to Human Rights Law 74; see also Currie and De Waal The Bill of Rights Handbook 210-240; see also Kruger Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 109.

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ascertain whether the challenged law or conduct differentiated between people or

categories of people. If so, does the differentiation bear a rational connection to a

legitimate Government purpose?194 If it does not, then there is a violation of section

9(1) of the Constitution. Even if it does, it might still amount to discrimination.195 One

would then have to ascertain whether the differentiation amounts to unfair

discrimination.196 This involves a two-stage analysis.197 Firstly, does the differentiation

amount to “discrimination” on a listed ground or secondly, if the differentiation amounts

to “discrimination”, does it amount to unfair discrimination? If it is based on one of the

listed grounds, then unfairness is presumed. If on an unspecified ground, unfairness

will have to be established by the complainant.198

The test of unfairness focuses primarily on the impact of the discrimination on the

complainant and others in his or her situation. However, if at the end of this enquiry,

the differentiation is found to be fair, then there will be no violation of section 9(3) and

(4) of the Constitution. If the discrimination is found to be unfair then a determination

will have to be made as to whether the provision can be justified under the limitation

clause contained in section 36.199

The first stage concerns the right to equal treatment and equality before the law in

section 9(1) in order to determine if the law or conduct has a rational basis. If there is

no rational link between the differentiation in question and a legitimate governmental

purpose, then the impugned law or conduct violates section 9(1) and it fails at the first

stage. If the differentiation is shown to be rational, then the second stage of the enquiry

is activated in that it may still be shown to amount to unfair discrimination in terms of

section 9(3) or (4).

194 Govindjee et al Introduction to Human Rights Law 75; see also Currie and De Waal The Bill of Rights Handbook 209-240; see also Kruger Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 108-109.195 Ibid.196 Put another way, does the differentiation amount to discrimination (if on a specified ground, then discrimination will have been established; if not, it depends upon attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings.197 Govindjee et al Introduction to Human Rights Law 74; see also Currie and De Waal The Bill of Rights Handbook 210-240; see also Kruger Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 109.198 Ibid.199 s 36 of the Constitution reads: “Limitation of rights (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-- (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”

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Govinjee et al have created a flow chart to describe the process detailed above.200 A

similar diagram is created to provide the reader with a visual representation of the line

of enquiry. Diagram 1 below is an adaptation of the diagram found in Govindjee et al of

the equality enquiry as per Harksen. For the sake of clarity and ease of understanding,

the portion relating to the limitation clause has been excluded. It is submitted that this

omission does not detract or alter from the process of the enquiry.

HARKSEN DIAGRAM

200 Govindjee et al Introduction to Human Rights Law 75; See also Currie and De Waal The Bill of Rights Handbook ch 9.

HARKSEN DIAGAM

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3 1 The Employment Equity Act

South Africa ratified the Discrimination (Employment and Occupation) Convention,

1958 (No 111) on 5 March 1997 and developed legislation to enact the convention.

The Employment Equity Act 55 of 1998 (hereafter the EEA) was passed to promote the

constitutional right of equality and to redress the effects of discrimination, giving effect

to South Africa’s international labour obligations.

The purpose of the EEA is to achieve workplace equity.201 The EEA complements the

LRA by refining the prohibition of unfair discrimination.202 As the focus of this study is

on unfair discrimination with reference to name-calling, specifically in respect of racial

slurs, the issue of affirmative action is not addressed.

The EEA203 provides stakeholders with mechanisms to counteract and eliminate

discrimination.204 Mechanisms to protect the individual employee include protection

against unfair discrimination, protection against unfair labour practices and the setting

of minimum standards for employment.

The EEA205 states that “[t]he purpose of [the EEA] is to achieve equity in the workplace

by promoting equal opportunity and fair treatment in employment through the

elimination of unfair discrimination”.206 Chapter 2 of the EEA207 is entitled “Prohibition of

Unfair Discrimination.” Section 5 of the EEA places a positive duty on every

employer,208 by stating that “every employer must take steps to promote equal 201 Dupper, Bhoola, Garbers, Jordaan, Kalula and Strydom Understanding the Employment Equity Act (2009) 4.202 Grogan Workplace Law 94.203 55 of 1998.204 Basson et al Essential Labour Law 215; Discrimination in areas other than employment is addressed through the Promotion of Equality and the Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA).205 55 of 1998.206 Section 2; See also Dupper et al Understanding the Employment Equity Act 4.207 55 of 1998.208 Basson et al Essential Labour Law 216.

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opportunity in the workplace by eliminating unfair discrimination in any employment

policy or practice”209

Section 6 contains the main thrust of the EEA’s prohibition against unfair

discrimination.210

“No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.”211

“Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed [above].”212

The provisions of Chapter 2 of the EEA213 apply to all employers and employees,

irrespective of an employer’s financial turnover or the number of employees in its

employ.214 A positive duty is placed on every employer215 to take steps to promote

equal opportunity in the workplace by eliminating unfair discrimination in any

employment policy or practice.216

3 2 Amendments to the EEA

Parliamentary Bills have previously been tabled by the Minister of Labour217 to amend

the LRA and the BCEA. As previously mentioned, the two statutes, together with the

EEA, form the cornerstone of our labour legislation. The Employment Equity

Amendment Act (hereafter EEAA) has now come into operation.

In terms of the amendments, the grounds for discrimination are no longer confined to

the listed criteria in section 6. Discriminatory grounds now include “on any other

209 Section 5 EEA Act 55 of 1998.210 Basson et al Essential Labour Law 216211 Section 6 (1) EEA Act 55 of 1998.212 Section 6 (3) EEA Act 55 of 1998; Grogan Workplace Law 95; Interestingly in the USA, a male employer was found not to have discriminated against a female employee when the employer fired her for being too attractive. The Iowa Supreme Court held that the male employer’s conduct did not amount to unlawful sex discrimination in violation of the Iowa Civil Rights Act as the assistant was fired due to her consensual personal relationship with her employer; K Hendersen “Firing 'attractive' assistant is legal –Iowa court reaffirms” (July 2013) http://www.reuters.com/article/2013/07/12/us-usa-dentist-sex-idUSBRE96B0XA20130712 (accessed 2015-07-29).213 EEA Act 55 of 1998.214 Dupper et al Understanding the Employment Equity Act 8; Section 5 EEA Act 55 of 1998.215 Basson et al Essential Labour Law 216.216 S 5 EEA Act 55 of 1998.217 The current Minister of Labour is Mrs Mildred Oliphant.

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arbitrary ground.”218 One notices a uniformity in terms as section 187(1)(f) of the LRA

also uses the term on any other arbitrary ground.

Furthermore, the EEAA provides that:

“A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed or on any other arbitrary ground is unfair discrimination.”219

“The Minister, after consulting the Commission, may issue a regulation setting out the criteria and the methodology for assessing work of equal value.”220

The following scenario may prove helpful in understanding a practical example of

unfair discrimination encountered in the workplace.

Consider a situation whereby the Nelson Mandela Bay Municipal Manager decides that

white female employees should make a larger pension-fund contribution than black

female employees. The decision comes after the newly-appointed manager reads an

article in the Daily Sun newspaper which suggests that white females live longer than

black females. Mrs Terblanche, a white female employee of the municipality, alleges

that the policy by the manager discriminates against white women.

The first issue that needs to be addressed is whether there is in fact differentiation. It

is clear that there are two categories of persons that are treated differently. Black

females are expected to make a standard contribution, while white females are

expected to make a larger contribution. Section 6 of the EEA221 contains a number of

listed grounds which prohibit any unfair discrimination of employees. In casu, there is

differentiation on a listed ground, namely race. If the ground is a listed ground

contained in section 6,222 the differentiation is regarded as discrimination and it is

presumed to be unfair. The onus then shifts to the Municipality to prove that the

discrimination is justified. The two grounds an employer may plead are affirmative

218 Employment Equity Amendment Act 2012 (hereafter EEAA).219 S6(4) EEAA.220 S6(5) EEAA.221S 6(1) of the EEA states that no person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice, on one or more grounds including race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, and birth.222 EEA.

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action and inherent requirements of the job.223 Clearly neither defence is available to

the NMBM and the discrimination is unfair.

In considering the application and impact of the Constitution on similar situations. Let

us now consider a further scenario:

During a staff survey, the Nelson Mandela Bay Municipal Manager realizes that certain

members of staff are HIV positive. Mr Smith is subsequently overlooked for

appointment as a front-desk enquiries assistant due to his HIV status. The manager

maintains that Mr Smith’s HIV status will pose a health risk as an enquiries assistant.

The manager alleges that members of the public would not want to deal with Mr Smith,

and confines him to a single office at the rear of the newly constructed municipal

building. The manager alleges that this is a long-standing policy of the municipality. Mr

Smith alleges that the policy and the decision are unfair and contravenes the

provisions of the Constitution.

As with the previous scenario, one would need to determine whether there is in fact

differentiation. In the second scenario there is clearly differentiation in the manager’s

policy as persons who are HIV positive are treated differently to those that are HIV

negative.

In terms of section 9 of the Constitution, a person’s HIV status is not a listed ground.

Mr Smith has to prove that the differentiation amounts to discrimination and that it is

unfair. As it is not discrimination on a specified ground mentioned in section 9 of the

Constitution, it would need to be established whether, objectively, it has the potential to

impair Mr Smith’s dignity or affect him in a comparably serious manner.224 If his dignity

is affected, then clearly there is discrimination. In terms of the EEA225 HIV is a listed

ground; therefore the policy amounts to discrimination and it is presumed unfair. The

Nelson Mandela Bay Municipality must therefore prove justification. One of the

grounds of justification is for the municipality to claim that members interacting with the

public would have to be HIV negative as it is an inherent requirement of the job.226

However, it is common cause that front-desk enquiry assistants do not have physical

contact with the public, and they generally sit behind a double-glazed glass screen.

The front-desk assistants therefore do not pose a health risk to members of the public

as physical contact between themselves and the public is limited.

223 S6(2) EEA.224 Govindjee et al Introduction to Human Rights Law 75.225 S6(1).226 S6(2)(b) EEA.

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The reader is reminded of the fact that this study focuses mainly on racial slurs in the

workplace, and that the scenarios illustrated above merely highlight practical issues

that one encounters within the employment arena, and the line of enquiry that one

would need to follow in order to determine whether actions of an employer amount to

unfair discrimination.

CHAPTER 4

1 Introduction

The right to dignity is recognized as an independent personality right and embraces the

subjective feelings of a person’s dignity.227 As mentioned in the chapter supra the

Constitutional Court in S v Makwanyane228 stressed that the “twin rights of life and

dignity…are the essential content of all rights under the Constitution.”229

“By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others.”230

Insulting words, belittling or contemptuous behaviour231 infringes on a person’s dignity.

An employee may be delictually liable for racial abuse towards fellow employees. So

too, will an employer be delictually liable for the acts of their employees. The chapter

that follows explores the liability of an employer, together with the delictual actions of

his or her employee.

2 What is a delict

227 Loubser, Midgley, Mukheibir, Niesing and Perumal The Law of Delict in South Africa (2010) 9; Neethling Potgieter and Visser Law of Delict (1999) 353.228 1995 (3) SA 391 (CC).229 1995 (3) SA 391 (CC) 84.230 S v Makwanyane 1995 (3) SA 391 (CC) 144.231 Neethling et al Law of Delict 353.

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“The law of delict is concerned with protecting the interests of plaintiffs, defendants and society in general...where these interests conflict, delict tries to reconcile them in an optimal way.”232

A delict is an act or omission of a person which in a wrongful and culpable way causes

harm to another.233 It can also be defined as a civil wrong for which damages can be

claimed in the form of compensation.234 The main aim in delict is to compensate the

victim, rather than to punish the wrongdoer. It could therefore be said that the law of

delict is compensatory in nature as opposed to being punitive in nature.235 The law of

delict establishes who should bear the loss, who should be compensated and how

much should be paid in damages and under what circumstances.236 The mere fact that

a person has caused another to suffer harm, is insufficient to constitute a delict. To

establish delictual liability, one needs to establish the following elements:

i. Conduct

ii. Harm

iii. Wrongfulness

iv. Fault

v. Causation

Delictual liability in South Africa is established whenever these five elements are

present. The absence of any one of these elements will result in there being no

delictual liability.237 South Africa is said to follow a generalizing approach “whereby

general principals or requirements regulate delictual liability.”238 This generalizing

approach, due to its flexibility and pliancy,239 is contrasted by the Anglo-American

casuistic approach “whereby liability arises only if the requirements of a specific delict

[or tort] are satisfied.”240 Therefore, cases have been cited which do not necessarily

involve racial discrimination but highlight the relevant elements that will need to be

established.

232 Loubser et al The Law of Delict in South Africa 19.233 Neethling et al Law of Delict 4.234 Loubser et al The Law of Delict in South Africa 4.235 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) par 72; It is noted that the actio iniuriarum does have a punitive element.236 Loubser et al The Law of Delict in South Africa 9.237 Liability may be avoided despite the presence of all the elements being established, as in the case of factors excluding liability.238 Neethling et al Law of Delict 7; Loubser et al The Law of Delict in South Africa 15.239 Neethling et al Law of Delict 5.240 Loubser et al The Law of Delict in South Africa 15; The statement that South Africa follows a generalizing approach is not entirely accurate … as Neethling, Potgieter and Visser refer to the “hybrid” nature that exists in South African law. That is between the generalizing approach being supplemented by the detailed and specific nature of the casuistic English approach.

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3 Vicarious Liability

The fundamental premise in law is that damage rests where it falls, that is, that each

person must bear the damage he or she suffers.241 However, damage does not always

rest where it falls, and there are indeed certain legally recognized instances where the

burden of damage is shifted from one individual to another, with the result that the

latter incurs an obligation to bear the former’s damage or to provide compensation

therefore.242 This is the case where damage or harm arises from a delict, and the

wrongdoer is legally obliged to compensate the aggrieved party.243 In addition, an

employer may be indirectly or vicariously liable for damage caused by an employee.244

Vicarious liability is the strict liability of one person for the delict of another.245 The focus

of this chapter is to showcase the employers’ delictual liability for actions of their

employees.

An employer will be fully liable for the damage caused by an employee if the following

criteria are met. There must be an employer - employee relationship at the time the

employee committed the delict; the employee must have committed a delict, and the

employee must have acted within the course of his employment when the delict was

committed.246

3 1 The Employer-employee relationship

According to Basson et al, a contract of employment would normally indicate an

employer-employee relationship. 247

“A contract of employment is a voluntary agreement…[whereby] one party (the employee) places his or her personal services or labour potential at the disposal and under the control of another (the employer) in exchange for some form of remuneration which may include money and/or payments in kind.”248

241Loubser et al The Law of Delict in South Africa 6; Neethling, Potgieter and Visser Law of Delict (1999) 3.242 Loubser et al The Law of Delict in South Africa 6; Neethling et al Law of Delict 3.243 Ibid.244 Note that an employee does not escape liability in the case of an employer being held vicariously liable; see Harnischfegar Corporation v Appleton 1993 (4) SA 479 (W) 487.245 Neethling et al Law of Delict 372.246 Neethling et al Law of Delict 373-378.247 Basson et al Essential Labour Law 23.248 Ibid.

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Both section 213 of the Labour Relations Act 66 of 1995 (hereafter the LRA) and

section 1 of the Basic Conditions of Employment Act (hereafter the BCEA) exclude an

independent contractor, and are identical in their definitions of an employee.249

Likewise, section 1 of the EEA250 also excludes independent contractors as

employees.251 A contract of service (locatio conductio operarum) must therefore exist,

while a contract of mandate, such as an independent contractor, does not found

vicarious liability.252

As labour legislation does not define a contract of service, the courts have developed a

number of tests to distinguish between an independent contractor and an employee.253

The question of whether the employer has an element of control was considered to be

a decisive factor in distinguishing between an employee and an independent

contractor.254 This is referred to as the “control test.” However, the control test has now

given way to the multiple or dominant impression test, which takes into account all

relevant factors or “indicia which would contribute to an indication whether a contract is

that of service or a contract of work.”255

A rebuttable presumption has now been added to the LRA in terms of Section 200A. If

the factors in section 200A256 are present the applicant is presumed to be an employee.

The onus is then reversed and placed on the employer to prove that the applicant is

not an employee.257

Recent labour cases have acknowledged a new test in determining the nature of the

relationship between the parties, referred to as the “reality test.”258 The reality test,

249 The LRA and the BCEA appear to exclude an independent contractor from part (a) of the definition. An “employee” means (a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and (b) any other person who in any manner assists in carrying on or conducting the business of an employer.250 55 of 1998.251 S1 of the EEA “any person other than an independent contractor…”252 Neethling et al Law of Delict (2010) 366; A mandatory would only be liable for harm or damage caused by a mandatory if both parties committed the delict; Saayman v Visser 2008 (5) SA 312 (SCA) 317-318.253 Basson et al Essential Labour Law 26-31; Tests previously used include the control test, the organization test, the dominant impression test.254 Colonial Mutual Life Assurance Society Ltd v Macdonald 1931 AD 412 434-435.255 Medical Association of SA v Minister of Health 1997 (5) BLLR 562 (LC) 569F-G; Some of the factors or indications include the right to supervision, the extent to which the worker depends on the employer in performance of duties, whether payment is at a fixed rate or commission, whether the worker provides his own tools and equipment, whether the worker is required to devote a specific time to his work, the employer’s power to dismiss. The element of control is only one aspect the dominant impression test takes into account.256 LRA.257 Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context (2012) 19; The presumption contains a threshold and does not apply to an applicant earning in excess of R172 000 per annum.258 Van der Walt et al Labour Law in Context 19.

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which does not focus on the intention of the parties, holds that, if the employer has a

right to supervise and control the employee, or if the employee forms an integral part of

the organization or if the employee is economically dependent on the employer, an

employee-employer relationship is established.259 The reality test therefore includes

aspects of the control test, the organization test, as well as the dominant impression

test. In essence what this means is that an employer may not simply escape liability

should an employee not have a contract of employment, or if the employee is not part

of the organizational structure per se.260 A wider net has now been cast and factors

such as economic dependency on the employer and their instructions received from an

employer are considered to determine whether or not an employer-employee

relationship does in fact exist.

3 2 The employee must have committed a delict

The employee must have committed the delict, and all five elements of a delict will

have to be established. Clearly, if a plaintiff fails to establish each of the elements

discussed infra, the delictual claim will fail. The principles distilled from case law

relating to the delictual elements of conduct, harm, wrongfulness, fault and causation

will now be discussed.

For purposes of the law of delict, “conduct” is defined as a voluntary human act or

omission.261 Conduct can therefore take the form of a positive act such as a senior

manager discriminating against a subordinate, a colleague racially abusing a fellow

employee (commissio), or a company’s failure to take measures to prevent harm from

occurring (omissio). It is accepted that companies (juristic persons) act through their

employees and can be held delictually liable for such actions.262 For conduct to

constitute an infringement to one’s right to dignity, the behaviour complained of must

not only infringe the plaintiff’s subjective feelings of dignity, but the conduct must also

be in violation of a legal norm. However, the Court in Delange v Costa confirmed that,

despite the plaintiff’s subjective feelings of insult, the conduct complained of did not

constitute an iniuria.263

259 Ibid. 260 Per se means by or in itself or themselves; intrinsically.261 Neethling et al Law of Delict 27.262 Ibid.263 1989 (2) SA 857 (A) 860-862; The plaintiff and the defendant were competitors and prominent members of the olive industry. In a written reaction to a letter by the plaintiff, the defendant allegedly made insulting remarks to the plaintiff. The plaintiff’s claim on the ground of an iniuria was rejected in the

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Liability of an employer for the conduct of an employee only ensues if there is a legal

duty on the company to prevent harm and the company failed to prevent harm, from

occurring.264 Wrongfulness for omissions will be discussed infra.

There is a distinction between damage (loss or harm) suffered by the plaintiff and

damages (monetary award) awarded by a Court to compensate someone who has

suffered harm or injury.265 Where harm suffered results in patrimonial loss, the

appropriate remedy is the Aquilian action.266 Money is thus intended as an equivalent

of damage.

If damage or loss is incapable of being compensated because money cannot be a true

equivalent of the impaired interests, satisfaction becomes relevant as a function of the

law of delict.267 Satisfaction implies the reparation of damage in the form of injury to

personality.268

For the defendant to be held liable, not only must the conduct be wrongful, but it should

also cause harm, in other words a causal nexus between conduct and damage is

required for the element of causation to be established.269 A person can thus not be

held liable if he has not caused any damage. The element of causation requires both

factual as well as legal causation to be present.

A causal nexus is simply something which factually exists or does not exist – if it does

exist, so-called “factual causation” is present.270 The test for factual causation is the

condictio sine qua non test. The test questions whether the wrongful conduct was a

necessary condition for the harm that has ensued. If harm would not have ensued but

for the defendants actions, factual causation is established. The condictio sine qua non

test is used in commissions as well as omissions that result in harm.271

The existence of a relationship of factual causation between the defendant’s conduct

and the harm suffered by the plaintiff is not sufficient to establish the presence of a

legally relevant causal connection.272 The purpose of legal causation is to limit liability,

and asks whether there is a close enough connection between the harm and the

magistrate’s court, the court a quo and in the Appellate Division.264 See Minister van Polisie v Ewels 1975 (3) SA 590 (A).265 Loubser et al The Law of Delict in South Africa 44. 266 Loubser et al The Law of Delict in South Africa 13; Neethling et al Law of Delict 8.267 Neethling et al Law of Delict 209.268 Ibid.269 Neethling et al Law of Delict 171.270 Ibid.271 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A); S v Van As 1967 (4) SA 594 (A).272 Loubser et al The Law of Delict in South Africa 85.

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conduct to impute liability273 in light of policy considerations such as fairness, justice

and reasonableness.274

In terms of the law of delict the defendant’s conduct must be regarded as wrongful. If

the harm suffered is as a result of a positive act, it is settled that the conduct is prima

facie wrongful.275 An infringement of a personality right, resulting in harm, is wrongful in

terms of the doctrine of subjectivity.276 In terms of this doctrine, wrongfulness is

established if the defendant violated a subject’s personality right and the interference

has taken place in a legally reprehensible manner.277 The test to determine whether the

behaviour subjectively infringed on the plaintiff’s dignity is the objective reasonable

test. The question to be answered is whether or not an “ordinary decent right thinking

person would regard a threat … as an insult to his or her dignity.”278 As mentioned

above, despite a plaintiff’s subjective feelings of insult, conduct complained of does not

necessarily constitute an iniuria279 as it must also take place in a legally reprehensible

manner.

In determining wrongfulness with regard to omissions, the boni mores test280 or the

general reasonable test which is based on the legal convictions of society is engaged.

The test to determine whether there is a legal duty on the defendant to prevent harm

occurring is purely objective. The boni mores test informs the test for wrongfulness to

ascertain whether there was a legal duty on the employer to prevent harm and whether

the employer failed to perform such a duty.281 Liability therefore only ensues if there is

a legal duty to prevent such harm.282

“The boni mores is therefore, a juridical yardstick which gives expression to the prevailing convictions of the community regarding right and wrong.”283

273 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A).274 Loubser et al The Law of Delict in South Africa 88.275 Loubser et al The Law of Delict in South Africa 142.276 Neethling et al Law of Delict 49-55.277 Neethling et al Law of Delict 49-55; such a violation may take place where a fellow-employee directly discriminates or verbally abuses a colleague.278 Minister of Police v Mbilini 1983 (3) SA 705 (A) 716.279 1989 (2) SA 857 (A) 860-862; The plaintiff and the defendant were competitors and prominent members of the olive industry. In a written reaction to a letter by the plaintiff, the defendant allegedly made insulting remarks to the plaintiff. The plaintiff’s claim on the ground of an iniuria was rejected in the magistrate’s court, the court a quo and in the Appellate Division.280 Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1976 (4) SA 376 (T). In this case the court accepted that wrongfulness is in principle determined by means of the general boni mores test; wrongfulness for an omission may practically occur when the conduct of an employee is brought to management’s attention and the latter fails to prevent harm from ensuing.281 Minister van Polisie v Ewels 1975 (3) SA 590 (A).282 The court considers a number of factors which indicate a legal duty to prevent harm, such as prior conduct, rules of law, special relationship between parties, contractual undertaking for the safety of a third party. This list is not a numerus clausus.283 Neethling et al Law of Delict 41.

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Wrongfulness, harm and conduct in these situations need not necessarily occur

simultaneously.284 Since the decision in the case of RAF v Mtati,285 it has been

accepted that the delictual elements need not occur simultaneously as they arise at

separate times. Wrongfulness is a matter of law,286 and as such, the onus is placed on

the plaintiff to prove the element in order to succeed with the claim.287

A defendant will be accountable if he is able to distinguish between right and wrong

and acts in accordance with the appreciation.288 Once accountability is established the

enquiry distinguishes between intention and negligence.289

To found intention, the perpetrator’s direction of will as well as consciousness of

wrongfulness is established290 if the perpetrator knows, or at least foresees, that his

conduct has been wrongful. To succeed with an action against a defendant that

infringed on one’s dignity, intent in the form of animus iniuriandi must be established.291

This creates a rebuttable presumption, providing the defendant with an opportunity to

raise a fault-excluding ground such as a lack of animus iniuriandi as a defence.292

4 In the course of employment

The employee must have acted in the course of his employment when the delict was

committed. An employee is regarded as acting within the scope of employment if he

acts in the execution or fulfilment of his duties in terms of his employment contract.293

Conversely, an employee will be acting outside his scope if he completely disengages

himself from his employment and exclusively promotes his own interests.294

While this assessment may at first glance seem straightforward, it involves a two-step

analysis which incorporates a subjective test as well as an objective one.

284 RAF v Mtati 2005 (6) SA 215 (SCA).285 2005 (6) SA 215 (SCA).286 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) .287 Loubser et al The Law of Delict in South Africa 139.288 Loubser et al The Law of Delict in South Africa 100.289 Ibid.290Loubser et al The Law of Delict in South Africa 107.291 Animus iniuriandi refers to the intentional infringement of a personality right.292 Neethling et al Law of Delict 353.293 Neethling et al Law of Delict 367.294 Minister of Police v Rabie 1986 (1) SA 117 (A) 134.

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The Constitutional Court in K v Minister of Safety and Security295 adopted the two-

pronged test which was formulated in Minister of Police v Rabie.296 The subjective test

involves asking whether the employee has exclusively promoted his own interests,

while an objective test asks whether the employee completely disengaged himself from

his contract of employment.297 If both answers to the abovementioned tests are in the

affirmative, the employee does not act in the scope of his employment and the

employer will accordingly not be vicariously liable.298

5 Conclusion

The main actions, forming the three pillars299 of the law of delict, are the Actio legis

Aquiliae300, the Actio iniuriarum301 and the Germanic Action for pain and suffering. It is

submitted that, depending on the damage suffered, a plaintiff may institute either of the

following:

i. The actio legis Aquiliae is an action to claim damages for the wrongful and

culpable (intentional or negligent) causing of patrimonial damage.302

ii. The actio iniuriarum is directed at satisfaction for the wrongful and intentional

injury to one’s personality interest, which is usually classified under one’s bodily

integrity (corpus), dignity (dignitas) and reputation (fama).303

iii. The action for pain and suffering may be used if a victim suffers harm to his/her

bodily or mental integrity as a result of the wrongdoer’s negligent behaviour.304

Courts have recognised that, within an employment context, racial abuse of an

individual humiliates and degrades not only the particular individual, but the workforce

295 2005 (6) SA 419 (CC); Ms K was raped by three on-duty uniformed policemen. While the High Court and the Supreme Court dismissed Ms K’s claim for damages, the Constitutional Court held that the Minister of Safety and Security was indeed vicariously liable, by adopting the test formulated in Rabie.296 Minister of Police v Rabie 1986 (1) SA 117 (A) 130F-G.297 Neethling et al Law of Delict 368-369.298 Notwithstanding the above, for the employer to escape liability, there must not be a sufficiently close connection between the conduct of the employee and his employment; Neethling et al Law of Delict 369; Minister of Police v Rabie supra 134.299 Neethling, Potgieter and Visser Law of Delict (2006) 7; Loubser et al raises the point that the Bill of Rights in the 1996 Constitution could be said to be the fourth pillar.300 Neethling et al Law of Delict 5.301 Neethling et al Law of Delict 5; Loubser et al The Law of Delict in South Africa 10.302 Neethling et al Law of Delict 5.303 Loubser et al The Law of Delict in South Africa 27.304 Neethling et al Law of Delict 5; Neethling et al does not restrict liability in the action for pain and suffering to negligence, but also includes intentional acts of the wrongdoer in certain instances.

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generally. An employee found to have made racist comments may be liable for his

wrongful act or omission. Conversely, if he has unjustifiably been called a racist, he

has a damages claim against the party accusing him of racism, as racist conduct is

regarded as reprehensible.305

CHAPTER 5

1 Introduction

As mentioned supra, racism was solidly entrenched by the system of apartheid in

South Africa. Racism by its very nature is offensive and unacceptable as it impairs the

dignity of an individual and fetters relationships within the workplace. While one may

accept that the workplace is not a finishing school, there are, however, limits to the

type of language employees are permitted to use.306

Racism in the workplace is considered a serious misconduct and may in certain cases

justify dismissal.307 Dismissal of an employee is dealt with later in this study. What

follows is a discussion on case law involving abusive language, racial comments, and

abuse in the workplace followed by a cautionary note of trends that emerged from case

law involving unfair discrimination.

Workplace is defined in section 213 of the Labour Relations Act308 as follows:

“(a) in relation to the public service –

(i) for the purposes of collective bargaining and dispute resolution, theregistered scope of the Public Service Co-ordinating Bargaining council or a bargaining council in a sector in the public service , as the case may be: or

(ii) for any other purpose, a national department, provincial administration, provincial department or organisational component contemplated in section 7(2) of the Public Service Act, 1994, or any other part of the public service that the Minister for Public Service and Administration, after consultation with the Public Service Co - coordinating Bargaining Council, demarcates as a workplace …

(c) in all other instances means the place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organisation, the place

305 Oosthuizen “Racist Language in the Workplace” 2004 121 De Rebus 431.306 Grogan Dismissal 179.307 Ibid.308 66 of 1995 (hereafter the LRA).

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or places where the employees work in connection with each independent operation, constitutes the workplace for that operation.”309

Section 1 of the Basic Conditions of Employment Act310 defines a workplace as any

place where an employee works.311 The definitions of a workplace supra clearly

supports a broader interpretation rather than a narrow one. According to Smit, a

workplace is not only a place where work is done.312 For instance, our courts have held

that racist abuse at a residential complex controlled by an employer was sufficient

reason to dismiss the respondent.313 The court also found that the fact that the

discrimination had not occurred in the physical workplace was found to be immaterial

as an employer’s duty extended the entire residential complex under its control.314

Interestingly, in the United States of America the Supreme Court of Appeal defined the

term workplace as being “those areas ... that are related to work and are generally

within the employer’s control”.315 If that was not wide enough, their courts have

included areas within a hospital, for instance which would include the cafeteria,

hallways, offices, desks and file cabinets, if the employee placed personal items in

them.316

A broad definition of workplace is found in both the United Kingdom and Australia, with

the former country defining the term “workplace” in no less than three separate pieces

of legislation.317 The latter defines the term as “a place where work is carried out for a

business or undertaking and includes any place where a worker goes, or is likely to be,

while at work.”318

It is submitted that the relatively broad definition of a workplace in South Africa is in line

with the foreign districts mentioned supra.319 In light thereof, no suggestion to alter or

vary the definitions is made for the purpose of dealing with racism in the workplace.

309 S 213 of the LRA.310 75 of 1997.311 S 1 of the BCEA.312 Smit Bullying in the Workplace: Towards a Uniform Approach in South African Labour Law 89.313 Biggar v City of Johannesburg, Emergency Management Services 2011 (6) BLLR 577 (LC).314 Biggar v City of Johannesburg, Emergency Management Services par 20; see also Smit Bullying in the Workplace: Towards a Uniform Approach in South African Labour Law 89.315 Smit Bullying in the Workplace: Towards a Uniform Approach in South African Labour Law 87.316 Smit Bullying in the Workplace: Towards a Uniform Approach in South African Labour Law 87-88.317 Ibid. 318 S 8 of the Work Health and Safety Act of 2012; see also Smit Bullying in the Workplace: Towards a Uniform Approach in South African Labour Law 88.319 The foreign districts include the United Kingdom, Australia and the United States of America.

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2 Case Law on Abusive Language and Racist Comments

“A modern workplace is not a heavenly garden of smiling buddhas focused on the welfare of others. More often than not it presents the contrary picture of a highly stressful and robust environment in which the pressures and demands to perform is placed on staff and, even more so, members of management who can on occasion contribute to managers conducting themselves in a manner that is less than desirable…”320

In 1976 a case involving racial abuse surfaced before a presiding officer in what is now

referred to as KwaZulu-Natal. In Ciliza v Minister of Police321 the plaintiff claimed that a

white policeman called him a Kaffir – however, the presiding officer was of the view

that the plaintiff failed to prove that the word kaffir was derogatory.322 On appeal

however, the full Court found that the word in question did constitute an unlawful

aggression upon the plaintiff’s dignity323 and R150 in damages was awarded.324

In Mbatha v Van Staden325 R2 000 in damages was awarded to the plaintiff following

an altercation in which the word Kaffir was used by the defendant. The court not only

held that the word was deeply offensive, but that an intention to give offence could be

taken for granted in most occasions.326

Labour courts have recognized that within the work context, racial abuse of an

individual humiliates and degrades not only the particular individual but the workforce

generally.327 Case law notes that during the 1970s courts regarded racial abuse as a

serious offence and today it is regarded as even more so. In the workplace, one may

summarize “racism” as the use of abusive words or phrases that impair the dignity and

reasonable sensibilities of those against whom they are directed, or in whose presence

they are uttered.328 This was illustrated in Lebowa Platinum Mines Ltd v Hill, where the

court was required to decide whether calling an employee a bobbejaan was racist. It

was indeed found to be racist and judicial notice was taken of the fact that black people

generally regard the term bobbejaan as abusive.329 320 Commissioner Marcus in Visser and Amalgamated Roofing Technologies t/a Barloworld (2006) 27 ILJ 1567 (CCMA) 1569.321 1976 (4) SA 243 (N).322 Ibid.323 Oosthuizen 2004 De Rebus 431.324 This case is also applicable in the chapter on vicarious liability. The Minister of Police was vicariously liable for the delict of an employee when the latter called a member of the public a Kaffir.325 1982 (2) SA 260 (N).326 1982 (2) SA 260 (N); By the learned presiding officer stating that the derogatory term would in most cases cause or give offence, one could interpret the judgment as meaning there may be indeed be circumstances in which the term may be used without causing offence. It is submitted that the learned officer should have determined that the term should in all, and not in most cases, cause offence. 327 Oosthuizen 2004 De Rebus 431.328 Grogan Dismissal 180.329 (1998) 19 ILJ 1112 (LAC); Oosthuizen 2004 De Rebus 431.

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Based on our not too distant history, one may be forgiven for assuming that in all case

law, black persons are the victims of racist attacks in the workplace. However, the

dismissal of a black employee for calling a white colleague a “Dutchman” was ruled

fair.330 It can therefore be said that the “race of the target of the abusive expression is

immaterial.”331

If uttering racial remarks were taken seriously in the 1970s, the Labour Appeal Court

has recently not minced its words in leading the war against racism in the workplace.332

What follows is a brief analysis of a case often relied on in racial-abuse cases: Crown

Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp.333

A supervisor was alleged to have uttered the words “los die kaffer – laat vrek” when

asked by a worker to call an ambulance for a black employee, Mr Maxim.334 Mr Maxim

had been injured on duty and a Mr Saul (a fellow-employee) informed a white

supervisor of the injury. Despite the supervisor later locking his office door in an

attempt to frustrate calls for help, the injured Mr Maxim was taken away in an

ambulance for medical treatment.335 The white supervisor was subsequently dismissed

after which he referred the matter to the CCMA.

Interestingly, at arbitration, the supervisor claimed that he did say that someone would

vrek but that this was in reference to the inadequate first-aid facilities on site which

could result in a fatality.336 Furthermore, he claimed that the injury had occurred due to

the injured employee’s fault. The supervisor also claimed that he had not received any

warnings with regard to referring to blacks as Kaffirs.337 The supervisor also claimed

that had he received warnings he would have been “taught how to behave properly.”338

Unsurprisingly, the supervisor denied that he uttered the alleged words.

330 Oerlikon Electrodes SA v Commision for Conciliation, Mediation and Arbitration (2002) 23 ILJ 1563 (LC).331 Grogan Dismissal 181; Racism is not limited to white on black attacks. A federal judge in Manhattan has awarded $30 000 (R298 701) in punitive damages and $250 000 (R2 489 175) in compensatory damages when a black employer subjected a black female employee to a 4 minute tirade of abuse in which the word nigger was used; Cawthon and Sgueglia “Black boss's n-word rant to black employee costs him, nonprofit $280,000” (September 2013) http://www.cnn.com/2013/09/03/us/new-york-racial-slur-lawsuit/index.html (accessed 2015-09-09).332 Grogan and Gauntlett “Workplace Racism no Room for Tolerance” 2002 18 ELJ 15 15; Oosthuizen 2004 De Rebus 431.333 (2002) 6 BLLR 493 (LAC).334 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp 494.335 Ibid.336 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp 507.337 Ibid.338 See in general Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp par 507.

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Grogan convincingly points out that “in spite of the supervisor’s extraordinary ‘defence’,

the commissioner held inter alia that it was highly unlikely that Mr Kapp339 would

endanger his job by making a racist remark within earshot of colleagues and

subordinates.”340 Nonetheless, the matter was taken on appeal. In short, the Court

found the supervisor’s explanation to be “patently false.”341

In using abusive language and making racist comments in the workplace, Nicholson

JA, stated that “the use by workers of racial insults in the workplace is anathema to

sound industrial relations and a severe and degrading attack on the dignity of the

worker concerned”.342

Zondo JP, noted the role of the Labour Courts in this regard, because “the decisions of

these two courts have a significant impact in every workplace throughout the breadth

and length of the country – in offices, in shops, in factories, on farms and elsewhere.”343

In responding to the supervisor’s comment, Zondo JP, stated:

“The attitude that manifests itself in certain whites calling, or referring to, Africans as Kaffirs is a disgracefully racist attitude that comes from those who think that they or whites are better human beings than black people. It is an attitude that has previously inspired whites to regard themselves as entitled to deny black people a say in the running of this country or as being entitled to be the ones who dictated to black people in which parts of this country they could have a so-called vote; it is an attitude that made them feel entitled to usurp to themselves and themselves alone the power to control and distribute the various resources of our country and to do so in a manner that unashamedly advantaged whites and disadvantaged blacks.”344

Finally, in what can only be described as a no-nonsense zero-tolerance approach to

racist language in the workplace, the labour courts have clarified the issue, holding that

there is simply no place for racist comments and abusive language in “any workplace

in this country and [racism] should be rejected with absolute contempt by all those in

our country – both black and white”.345

While Zondo JP, sounds emotional, his logic and reasoning is somehow

understandable, given South Africa’s chequered past. Courts during the 1970s have

339 Mr Kapp was the supervisor at Rocklands Poultry.340 Grogan and Gauntlett “Workplace Racism no Room for Tolerance” 2002 18 ELJ 15 15; Oosthuzen “Racist Language in the Workplace” 2004 De Rebus 431.341 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp par 61.342 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp par 63; Grogan and Gauntlett “Workplace Racism no Room for Tolerance” 2002 18 ELJ 15 15.343 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp par 34.344 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp par 36.345 Grogan and Gauntlett 2002 ELJ 15; Oosthuizen 2004 De Rebus 431.

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held wrongdoers accountable for their actions and have shown increased vigour in

their determination to stamp out racism in recent cases.

3 Analysis, trends and conclusions drawn from case law

According to Dupper and Garbers, labour law in South Africa has only recently

expressly adopted the anti-discrimination principle as it was first introduced into the

interim Constitution, then into the final Constitution, and now it has been incorporated

into labour law, first via Schedule 7 of the LRA as a residual unfair labour practice, and

most recently into section 6 of the EEA.346

The authors further contend that the trajectory of the prohibition of unfair discrimination

in South Africa suggests that any prognosis about the continued contribution of the

prohibition against unfair discrimination to the promotion of equality is circumscribed by

limited experience.347 Nonetheless the authors provide no less than five interesting

trends and conclusions drawn from cases regarding unfair discrimination.348

These can briefly be summarized as follows:

Firstly, discrimination litigation tends to be dominated by race, sex and age with many

of the race-discrimination cases being actually affirmative action cases whereby

members of previously advantaged groups have challenged affirmative action

decisions as discriminatory. They further contend that sex-discrimination cases almost

exclusively relate to instances of automatically unfair dismissal which constitute a mix

of harassment, the dismissal of transsexuals, the dismissal of male correctional officers

for failing to cut their dreadlocks and the dismissal of a female subordinate against the

backdrop of an affair at work. Interestingly, while there are 19 grounds of discrimination

mentioned in the EEA, a surprisingly large number of litigants place reliance on

unlisted grounds, or simply fail to mention any ground whatsoever. The authors

346 Dupper and Garbers The Prohibition of Unfair Discrimination and the Pursuit of Affirmative Action in the South African Workplace 2012 AJ 245.347 Dupper and Garbers The Prohibition of Unfair Discrimination and the Pursuit of Affirmative Action in the South African Workplace 245.348 Dupper and Garbers based their analysis and trends on a review of more than one hundred reported discrimination cases.

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conclude that this trend suggests that discrimination is not clearly understood within

the workplace349

Secondly, matters with regard to policies and practices are dominated by

appointments, promotions and dismissals, which are automatically unfair if they are

based on discrimination.350 Cases involving “equal-pay cases” also feature prominently

because they are about remuneration and benefits. The authors suggest that

employees’ foremost concerns are about retaining their jobs and increasing their

incomes, and allegations about discrimination arise from their monetary needs and not

from the existence of discrimination per se. It therefore appears that it is money first,

with discrimination as an afterthought.351

Thirdly, case law shows that employees have a low success rate in discrimination

cases, especially in race-discrimination cases. In sex-discrimination cases (consisting

of dismissal cases and a single affirmative action case) complainants have seen a

higher success rate. Where litigants have relied on sometimes fanciful unlisted

grounds or have not specified the ground involved, the success rates have dropped

sharply.

Penultimately, the fourth trend deals with an analysis of unsuccessful cases wherein

the main reason for failure is the inability of the litigant to prove causation. 352 In other

words, the litigant had been unable to establish a link between the conduct complained

about and the ground of discrimination. As far as failure associated with the alleged

ground of discrimination is concerned, the two main reasons for failure are where a

litigant relies on an unlisted ground, but is unable to convince the court that it is worthy

of recognition, and cases in which complainants do not rely on any ground at all and

simply rely on vague notions of “unfairness”, “arbitrariness”, “capriciousness” or

“irrationality” as grounds of discrimination.353 The authors conclude that the

unsuccessful cases show not only that discrimination is poorly understood, but also

that there are many ways in which employers can successfully defend discrimination 349 Dupper and Garbers The Prohibition of Unfair Discrimination and the Pursuit of Affirmative Action in the South African Workplace 249.350 Ibid.351 Dupper and Garbers The Prohibition of Unfair Discrimination and the Pursuit of Affirmative Action in the South African Workplace 249.352 Dupper and Garbers further state that causation is followed by three other reasons viz the inability of the complainant to show differentiation; problems associated with the ground of discrimination alleged by complainants; and, in a very limited number of cases, the ability of employers to justify discrimination almost exclusively limited to use of affirmative action as a defence in the so-called affirmative action cases. 353 Dupper and Garbers The Prohibition of Unfair Discrimination and the Pursuit of Affirmative Action in the South African Workplace 250.

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cases, viz: attacking the choice and applicability of the ground of discrimination, or

attacking the alleged existence of differentiation, or even attacking the link between the

differentiation and the ground. As indicated in the diagram referred to in the Harksen

enquiry,354 it is only once a complainant passes over hurdles that justification by the

employer becomes important.355

Finally, the fifth trend shows an almost complete absence of indirect discrimination

cases.356 The authors contend that in almost all of the cases where complainants

endeavoured to fashion a direct discrimination case, based on some fanciful unlisted

ground, or in the absence of a ground, or based on a non-existent ground,

complainants could have built a more successful case based on indirect discrimination

on a listed ground.357

What this means for a litigant, relying on direct or indirect discrimination as a cause of

action, are the following cautionary and valuable lessons:

It is the complainants that lose cases because they cannot prove discrimination rather

than employers winning because they are able to justify their actions.358 Another

reason why most employees lose their cases is because it appears that both direct and

indirect discrimination remain poorly understood concepts and that evidence brought

before court is often inadequate to support the claims.359 A further lesson is that

discrimination cases are dominated by race, sex and age. According to Dupper and

Garbers the reason for this may be due to the manner in which discrimination had

been entrenched historically, and an ignorance of a wide range of other legal grounds

of discrimination.360

It also appears that litigation launched on the basis of discrimination often has a

clandestine monetary motive in situations whereby an employer’s policy or practice has

a negative effect on an employee’s financial circumstances. The prohibition against

354 See diagram in par 3 Equality supra.355 Dupper and Garbers The Prohibition of Unfair Discrimination and the Pursuit of Affirmative Action in the South African Workplace 250.356 Ibid.357 Dupper and Garbers The Prohibition of Unfair Discrimination and the Pursuit of Affirmative Action in the South African Workplace 251.358 Ibid. 359 Dupper and Garbers The Prohibition of Unfair Discrimination and the Pursuit of Affirmative Action in the South African Workplace 251.360 Ibid.

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unfair discrimination therefore becomes a residual ad hoc and convenient proxy for

serious feelings of monetary unfairness.361

Finally, case law or precedent is of limited value due to the relatively poor quality of

matters that are decided upon. Our courts have not had to grapple with the legal

meaning of most of the grounds of discrimination, nor have they had to grapple with

the concept of discrimination itself. There has been no discussion about the meaning

of “indirect discrimination” and the limits of conduct that constitute “justification” for

discrimination.362

4 Conclusion

From the above, it is noted that the use of offensive terms in the workplace is

unacceptable. A casual remark by an employee in the workplace can lead to economic

consequences for the employer. More than one type of racism exists, viz overt and

covert. 363 The former includes obvious things like hateful jokes and name-calling. The

latter is considered more covert and harder to identify. The employer faces litigation

which is both disruptive and costly. An employee found to have used racist language

can expect to suffer severe sanctions from employers and the labour courts alike.364 A

reading of labour cases provides a clear and unambiguous message. Racist comments

and racial abuse will simply not be tolerated by the courts. If one is found to have made

racist comments one could be dismissed. Conversely, one has have unjustifiably been

called a racist, one has a damages claim, as racist conduct is regarded as

reprehensible.365

361 Dupper and Garbers The Prohibition of Unfair Discrimination and the Pursuit of Affirmative Action in the South African Workplace 251.362 Ibid.363 Chuasiriporn “How to Deal With Racism at Work” (undated) http://smallbusiness.chron.com/deal-racism-work-18745.html (accessed 2015-09-21). 364 Oosthuizen 2004 De Rebus 431.365 Ibid.

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CHAPTER 6

1 Introduction

The preceding chapters have not highlighted the procedure that an aggrieved applicant

may follow when he or she lodges a claim of racism. Studies often focus on

substantive aspects of labour law, leaving the reader with the task of sifting through the

procedural component. This chapter aims to highlight the relevant procedures that

parties must follow in disputes involving racism. Before a final conclusion is made,

shortcomings and recommendations will be explored.

2 Relevant Institutions

Conciliation, arbitration, con-arb (conciliation-arbitration), facilitation and adjudication

are the key labour-dispute resolution processes in South Africa. Dispute-resolution

institutions include the Labour Court, the Labour Appeal Court, bargaining councils and

the Commission for Conciliation, Mediation and Arbitration (hereafter the CCMA).

Schedule 4 of the Labour Relations Act366 (hereafter the LRA) contains flow diagrams 366 66 of 1995.

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which are guidelines to procedures an applicant may follow. Schedule 4 of the LRA is

not part of the LRA in the sense that it does not have the force of law; instead, the

diagrams are intended to provide assistance to the parties involved in the dispute.367

Flow diagram 14 of schedule 4 of the LRA, entitled Unfair Labour Practice, is no longer

operative with regard to disputes involving discrimination and is now dealt with in the

EEA.368

3 Disputes involving Racial Comments

In terms of section 10 of the EEA369, any party to a dispute, excluding a dispute about

unfair dismissal, may refer the dispute in writing to the CCMA within six months after

the alleged act or omission. Whenever unfair discrimination is alleged, the employer

against whom the allegation is made must establish that it is fair.370 A mere allegation

of racism is insufficient as the applicant would have to show all the elements of

discrimination, as well as the fact that he or she is an employee.371

Once an applicant proves that he or she is a victim of discrimination, the onus is then

on the employer to prove the fairness thereof. The grounds on which an employer may

rely on are considered later. The CCMA is granted the power to condone a failure to

comply with the specified time provisions – provided the applicant shows good

cause.372

Section 10(4)373 holds that the party referring the dispute must satisfy the CCMA that a

copy of the referral has been served on every other party and that a reasonable

attempt to resolve the dispute has been made. Exhausting internal grievance

procedures would constitute a reasonable attempt at resolving the dispute. In short, an

organisation’s internal grievance procedure normally entails bringing an incident to a

367 Van der Walt, Le Roux and Govindjee (eds) Labour Law in Context (2012) 243.368 55 of 1998.369 Act 55 of 1998.370 S11 of the EEA.371 Transport and General Workers Union v Bayete Security Holdings (1999) 20 ILJ 1117.372 S7 of the EEA.373 EEA Act 55 of 1998.

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supervisor’s attention. The supervisor should attempt to resolve the matter

immediately. If the supervisor is unable to resolve the issue, he should escalate the

issue to a line manager who must resolve the issue. If the line manager is unable to

resolve the matter, it must be referred to the human-resources department. Should the

matter still not be resolved, the employee has the right to refer the matter to the CCMA.

Section 10(5)374 provides that the CCMA must attempt to resolve the dispute through

conciliation. In the event of conciliation failing, any party may refer the dispute to the

Labour Court for adjudication. Alternatively, all parties to the dispute may consent to

arbitration.

3 1 Jurisdiction of the CCMA in terms of the EEAA

Previously, all unfair discrimination claims fell within the exclusive jurisdiction of the Labour Court. Unfair discrimination claims may now be referred to the CCMA for arbitration by lower-paid employees (those earning less than the earnings threshold prescribed under section 6(3) of the BCEA, which is currently at R205 433.30 per year)375. The CCMA encourages parties to resolve the issues at conciliation. Prior to the amendments, a failure to resolve at that stage could render the complainant powerless to pursue the matter.

In theory, employers could tactically refuse to admit wrongdoing with the knowledge that the employee probably does not have the means to take the issue further. Now a failure to reconcile leads to automatic arbitration. There is a qualification, of course, in that this only applies to employees earning below the threshold.376

In the case of discrimination claims by higher earning employees, the parties may

consent to the referral of a discrimination dispute to the CCMA for arbitration. However,

the maximum award that the CCMA can make in respect of damages will be an

amount equal to the earnings threshold referred to above. A person affected by an

arbitrator’s award in a discrimination case will be entitled to appeal to the Labour Court.

374 Ibid.375 Annual figure correct as at January 2015.376 Generally speaking, it is submitted that this would include the majority of working South Africans.

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3 2 Burden of Proof

“[W]henever unfair discrimination is alleged in terms of [the EEA] the employer against whom the allegation is made must establish that it is fair.”377

However, in terms of the amendments to the EEA, the onus of proof is somewhat

different. In terms of the EEAA, if unfair discrimination is alleged on a listed ground,

the employer against whom the allegation is made must prove on a balance of

probabilities that the discrimination did not take place, or that the discrimination was

rational and is fair or that it is otherwise justifiable.378 Alternatively, if unfair

discrimination is alleged on an arbitrary ground, an employee must prove on a balance

of probabilities that the conduct complained about is not rational, that the conduct

complained about amounts to discrimination and that the discrimination is unfair.379

4 Discipline by Employer

The dismissal of an employee is seen as the most severe penalty that an employer

may impose against an employee for misconduct.

In terms of the common law, an employer could dismiss an employee, either by giving

notice, or by summarily dismissal of the employee if the misconduct is of a serious

nature. Moreover, in terms of the common law, an employer could not suspend an

employee without pay or demote or transfer an employee. An employer could,

however, suspend an employee on full pay or issue a number of warnings. Clearly, this

would not be an effective form of discipline380 as it fails to sufficiently curtail the

wrongdoer’s wrongdoing. In addition, an employer is required to take proactive steps to

eliminate unfair discrimination in the workplace381 rather than being reactive.382

377 S11 of the EEA.378 S11(1) EEAA.379 S11(2) EEAA.380 Basson et al Essential Labour Law 115.381 S5 EEA.382 Piliso v Old Mutual Life Assurance supra 77.

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The Code of Good Practice383 recognizes an employer’s right to discipline an

employee.

“All employers should adopt disciplinary rules that establish the standard of conduct required of their employees.”384

The employer’s own disciplinary code will be measured against the Code of Good

Practice which also constitutes minimum conditions in the absence of the former.

Should an employer have such an agreed disciplinary code, it follows that the

disciplinary action must comply with its procedure.

In larger organizations, the employer’s disciplinary codes are set out on notice boards

or in contracts of employment. Smaller employers often do not have written disciplinary

codes, and staff may raise the defence that they are not aware of a particular rule. 385

The Act counteracts this very situation by stating that “[s]ome rules or standards may

be so well established and known that it is not necessary to communicate them.”386 It is

submitted that discrimination, based on race or racism, is such a well-known and

established rule as the right to equality is entrenched in the Constitution, given effect to

in labour legislation and echoed in international labour organizational standards.

4 1 Procedural fairness of a dismissal

Should the employer dismiss an employee for misconduct, section 188(1)(b) of the

LRA requires the employer to follow a fair procedure. This affords the other side an

opportunity to voice their version of the story.387 Item 4 of the Code of Good Practice388

provides guidelines that an employer should follow. The guidelines are not hard-and-

fast rules and much will depend on the facts of a particular dispute.

Fair procedure –

“(1) Normally, the employer should conduct an investigation to determine

whether there are grounds for dismissal. This does not need to be a

383 Schedule 8 of the LRA.384 Schedule 8 item 3(1) of the LRA.385 Basson et al Essential Labour Law 115.386 Schedule 8 item3(1) of the LRA.387 This is in accordance with the common law principle of audi alterem partem.388 LRA.

59

formal enquiry. The employer should notify the employee of the

allegations using a form and language that the employee can reasonably

understand. The employee should be allowed the opportunity to state a

case in response to the allegations. The employee should be entitled to a

reasonable time to prepare the response and to the assistance of a trade

union representative or fellow employee. After the enquiry, the employer

should communicate the decision taken, and preferably furnish the

employee with written notification of that decision.

(2) Discipline against a trade union representative or an employee who is an

office-bearer or official of a trade union should not be instituted without

first informing & consulting the trade union.

(3) If the employee is dismissed, the employee should be given the reason

for dismissal and reminded of any rights to refer the matter to a council

with jurisdiction or to the Commission or to any dispute resolution

procedures established in terms of a collective agreement.389

4 2 Substantive fairness of a dismissal

In terms of section 188(1) of the LRA, an employer who dismisses an employee must

do so for a fair reason. Uttering racial comments to fellow employees may constitute

misconduct and result in the dismissal of the employee. The Act390 recognizes conduct

of an employee as a ground on which termination of employment might be

legitimate.391 Item 7 of the Code provides guidelines for an employer in this regard.

Briefly stated, any person in determining whether a dismissal for misconduct is unfair

should consider whether the employee contravened a rule or standard regulating

conduct in, or of relevance to, the workplace.392

In addition, one would need to ascertain whether the rule or standard is valid or

reasonable.393 Also, whether the employees are aware or could reasonably have been

expected to be aware of the rule or standard.394 Further, enquiries have to be made on

389 Item 4 Code of Good Practice LRA.390 LRA.391 Schedule 8 (2) of the LRA.392 Item 7(a) Code of Good PracticeLRA.393 Item 7(b)(i) Code of Good Practice LRA.394 Item 7(b)(ii) Code of Good Practice LRA.

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whether the rule has been consistently applied and finally, whether dismissal would be

an appropriate sanction.395

5 Shortcomings and recommendations

There can be little doubt that racism in the workplace was commonplace specifically in

the 1970s and the 1980s. One may be forgiven for thinking that since the Constitution,

labour legislation and ever-growing employment jurisprudence, occurrences of an

unsavory nature have ceased. This would, however, be incorrect as unusually large

number of incidents are still being recorded and continue to make it to the steps of our

courts.396

The Constitution provides for the equality principle which applies within as well as

outside the workplace. The court in Harksen determined the substantive test to

determine whether the right to equality has been infringed or threatened by conduct or

legislation.397 A diagram has been created and explained supra. In order to identify

clearer standards that could serve as a guide, Kruger proposes an adaptation of the

Harksen test to be used in incidents of unfair discrimination.398 These can be

summarized as follows:

“(i) The complainant must establish that s/he has been subjected to

differentiating treatment.

(ii) The complainant must establish that the differentiating treatment was based

on race. Such differentiating treatment will then amount to discrimination which

is presumed to be unfair.

(iiii) The respondent may then rebut the presumption of unfairness. Unfairness

refers to the impact of the discrimination. In line with my analysis of the dignity centred

approach above, I propose a determination of the unfairness of the

discrimination with reference the impairment of the dignity (in the objective or

Kantian sense) of the complainant in that it:

(a) is based on prejudice or stereotype;

395 Item 7(b)(iii) and (iv) Code of Good Practice LRA.396 Oosthuizen 2004 De Rebus 431.397 Govindjee et al Introduction to Human Rights Law 74; see also Currie and De Waal The Bill of Rights Handbook 210-240; see also Kruger Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 109.398 Kruger Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 141.

61

(b) perpetuates oppressive power relations; or

(c) in conjunction with (i) or (ii) diminishes the feelings of self-worth of

the complainant.”399

One of the major hurdles that needs to be overcome is a lack of appreciation for the

seriousness of racist attacks in the workplace. As previously stated, smaller

enterprises seldom contain a code of conduct, or if they do possess one, it is often not

communicated to their employees. The communication of rules and standards that

employees are expected to abide by, need to be communicated and displayed in a

clear and unambiguous manner.

In an effort to curb racism in the workplace employers should adopt a zero-tolerance

approach.400 What this in essence entails is that an employer should ensure that

company rules and policies are communicated to all employees. This will enforce a

clear message to all employees that racism will not be tolerated. Whether an incident is

brought to an employer’s attention through an internal grievance procedure or witness

by the employer first hand, employers should take swift and decisive action against the

wrongdoer. Employers should send out a strong message that racism simply will not

be tolerated and that, equally, neither would false allegations as this too creates a

displeasing employment environment susceptible to workplace tension.

Racism may also be curbed with the implementation of sound policies and

procedures.401 Regardless of the size of an organization, policies and procedures

should be communicated to employees. This includes consequences of discriminatory

practices, as employers may be jointly liable for inaction or a failure to respond

adequately to a valid grievance regarding an allegation of racism or racist abuse by an

employee.402 Once a grievance is lodged, an employer should immediately deal with

the grievance in line with its disciplinary policy or grievance procedure.

It is often said that the world is getting smaller and that we live in a global village.

South Africa’s workforce is no longer restricted to South African nationals, and includes

an ever-growing foreign national contingent.403 Even though discrimination is not a new

phenomena in parts of Africa, employees of different nationalities may feel that 399 Ibid. 400 Iten “Four ways to manage racism in the workplace” (February 2013) http://fspbusiness.co.za/articles/labour-hr/four-ways-to-manage- racism-in-the-workplace-1660.html (accessed 2015-08-12); Makgetla “Unfair Play in the Workplace” (March 2007) http://mg.co.za/article/2007-03-22-unfair-play-in-the-workplace (accessed 2015-08-12). 401 Iten “Four ways to manage racism in the workplace” February 2013 http://fspbusiness.co.za/articles/labour-hr/four-ways-to-manage- racism-in-the-workplace-1660.htm l (accessed 2015-08-12).402 Neethling et al Law of Delict 372.

62

managers or supervisors in organizations are guilty of stereotyping. To avoid

stereotyping, managers of organizations should be encouraged to celebrate diversity

and attend workshops in an effort to understand and appreciate diversity. This not only

fosters stronger relationships but also assists in developing an intercultural ethos within

any organization.404

CHAPTER 7

The Constitution of the Republic of South Africa, 1996 is the highest law of the land

with subsequent legislation having been passed to give effect to same. Section 9 of the

Bill of Rights states that everyone is equal before the law and enjoys equal protection

and benefit of the law.405 The section also contains a prohibition of unfair discrimination

on certain listed grounds. A presumption exists if the discrimination is based on one of

the listed grounds.

The stare decisis doctrine406 finds application in South African law, as does the law of

delict and the doctrine of vicarious liability.407

Of particular importance for labour law are its sources, being the common law, the

provisions of the contract of employment, legislation, collective agreements,

international labour law standards, customs and practice and, lastly, constitutional

provisions.408

403 An estimated 1 to 8 million foreign nationals are believed to be working in South Africa; Polzer “Population Movements in and to South Africa” June 2010 FMSP 2.404 Iten “Four ways to manage racism in the workplace” February 2013 http://fspbusiness.co.za/articles/labour-hr/four-ways-to-manage- racism-in-the-workplace-1660.htm l (accessed 2015-08-12); Makgetla T “Unfair Play in the Workplace” March 2007 http://mg.co.za/article/2007-03-22-unfair-play-in-the-workplace (accessed 2015-08-12).405 Referred to as the principle of equality before the law.406 Latin translation meaning "to stand by that which is decided", Stare decisis is a legal principle which dictates that courts may not disregard the standard which was created; the court must uphold prior decisions. In essence, this legal principle dictates that once a law has been determined by a court of higher status (which hears and determines appeals from the decisions of the trial courts) to be relevant to the facts of the case, future cases will follow the same principle of law if they involve considerably identical facts.407 See chapter 4 supra.408 D M Smit Bullying in the Workplace: Towards a Uniform Approach in South African Labour Law LLD Thesis University of the Free State (2014).

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Four legal mechanisms exist to protect employees within the workplace.409 These

mechanisms exist in the protection against unfair discrimination, protection against

unfair labour practices, the setting of minimum standards410 and the protection against

unfair discrimination.411 South African legislation provides for both formal equality and

substantive equality. Formal equality refers to equality in treatment whereby unfair

discrimination is prohibited.412 Substantive equality refers to equality in outcome and is

enshrined through the adoption of positive measures, such as affirmative action.413

When an employee or supervisor makes racist comments in the workplace, a business

or company can face costly legal consequences. Racist comments can easily also

create a hostile work environment, leaving the employer open to potential lawsuits for

racial discrimination.414 Chuasiriporn identifies several guidelines to tackle racism in the

workplace.415 These guidelines apply to both the employer and employee and can

briefly be summed up as follows:

An employer (manager or person in a supervisory capacity) should develop a clear

policy statement about the employer’s zero-tolerance stance on racism in the

workplace. The policy should explain that there are two kinds of racism, viz overt and

covert. 416 The former includes obvious things like hateful jokes and name calling. The

latter is considered more clandestine and harder to diagnose.

409 The EEA for instance places an obligation on all employers to promote equal opportunity in the workplace through the elimination of unfair discrimination in employment policies and practices. Section 6 of the EEA, provides that “no person” may unfairly discriminate, directly or indirectly against an employee in an employment policy or practice on the grounds listed which include race; see also Kruger Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 223.410 Such as the Basic Conditions of Employment Act 75 of 1997.411 See in general Basson, Christianson, Dekker, Garbes, Le Roux, Mischke and Strydom Essential Labour Law (2009) ch 6.412 See in general Basson et al Essential Labour Law ch 11.413 Ibid. 414 Snider “Racist Comments at Work: What Can Employers Do?” (April 2014) http://blogs.findlaw.com/free_enterprise/2014/04/racist-comments-at-work-what-can-employers-do.html (accessed 2015-11-05).415 Chuasiriporn “How to Deal With Racism at Work” (undated) http://smallbusiness.chron.com/deal-racism-work-18745.html (accessed 2015-09-21); Conversely McKaiser provides an interesting article entitled “Five unhelpful responses to racism” in which he cites the following five unhelpful responses to racism in which he exercises his poetic licence in detail: Response (1) wherein the person that is accused of racism calls for a debate instead of dealing with real issues at hand; response (2) wherein the victims of racism remain silent; response (3) wherein the race issue is substituted by a class issue; response (4) believing the fallacy that racists are a minority and finally response (5) wherein the victim of a racist attack clearly upset by being exposed to racism, shows his/her disapproval of the offending behaviour and is told to calm down: McKaiser “Five unhelpful Responses to Racism” (January 2015) http://www.iol.co.za/news/five-unhelpful-responses-to-racism-1.1809529#.Vl04D5yEtMs (accessed 2015-12-01). 416 Chuasiriporn “How to Deal With Racism at Work” (undated) http://smallbusiness.chron.com/deal-racism-work-18745.html (accessed 2015-09-21).

64

Employers should also analyse and identify institutionalized racist practices that may

exist within a company.417 Clearly, this process requires a lot of honest evaluation and

cooperation which understandably may be a difficult process.

Employers should also implement a progressive corrective-action system to

supplement a company's zero-tolerance policy on racism.418 Needless to say, all

persons in positions of control, such as supervisors, managers and team leaders

should document all instances of racism that are witnessed or reported to them.419 The

collection of documentary evidence should therefore assist employers in proving that

they took all reasonable steps to prevent racism from occurring within the workplace as

well as corroborating the version of events by the victim employees.420

An employer should lastly in addition also develop and encourage an environment that

provides security to employees who report incidents of racism.421 Clearly, should an

employee feel unable or victimized when reporting any incidents of racism to an

employer, none or very few incidents will be reported and the employee will in all

eventuality seek employment elsewhere, or worse yet, remain a silent or disgruntled

employee.

As mentioned supra, these guidelines also apply to employees where applicable. An

employee who is a victim of racism in the workplace should document all incidents that

have occurred in the workplace, which should include inter alia names, dates, times,

witnessed and detailed descriptions of the event.422

All employees who experience racism should also report each and every incident that

occurs to a supervisor, person of authority, union shop steward or any relevant

escalation procedure provided for by the company.423 The benefit in reporting same is

twofold: viz the person responsible for the offending behavior is then brought to task 417 Ibid. 418 Chuasiriporn “How to Deal With Racism at Work” (undated) http://smallbusiness.chron.com/deal-racism-work-18745.html (accessed 2015-09-21). 419 Snider “Racist Comments at Work: What Can Employers Do?” (April 2014) http://blogs.findlaw.com/free_enterprise/2014/04/racist-comments-at-work-what-can-employers-do.html (accessed 2015-11-05).420 Ibid. 421 Chuasiriporn “How to Deal With Racism at Work” (undated) http://smallbusiness.chron.com/deal-racism-work-18745.html (accessed 2015-09-21). 422 Chuasiriporn “How to Deal With Racism at Work” (undated) http://smallbusiness.chron.com/deal-racism-work-18745.html (accessed 2015-09-21); see also Harrison “Racist or Not?: ‘Love and Hip Hop’ Episode Shines Light on Workplace Discrimination” (December 2015) http://www.blackenterprise.com/career/jen-the-pen-raqi-thunder-workplace-racism-discrimination-love-and-hip-hop/ (accessed 2015-01-12). 423 Harrison “Racist or Not?: ‘Love and Hip Hop’ Episode Shines Light on Workplace Discrimination” (December 2015) http://www.blackenterprise.com/career/jen-the-pen-raqi-thunder-workplace-racism-discrimination-love-and-hip-hop/ (accessed 2015-01-12)

65

and he or she is prevented from inflicting any more unwanted behavior in the

workplace.424

To discriminate is to fail to treat a fellow human being as an individual and to assign

characteristics to him or her which are based on assumptions about certain groups of

people.425 The right to dignity is recognized in the Constitution as an independent

personality right which embraces the subjective feelings of a person’s dignity.426

Insulting words, belittling or contemptuous behaviour427 infringes on one’s dignity.428

Racism in the workplace is considered a serious misconduct and may in certain cases

justify dismissal of an employee – even on the first offence.429 As reiterated supra an

employer may also be liable for the misconduct of an employee. Labour legislation

places an obligation on an employer to take “the necessary steps to eliminate any

alleged conduct that may amount to unfair discrimination.”430 The employer may incur

liability where he/she fails to take the necessary steps to ensure compliance,431 but will

not be held liable if he/she proves that all steps that were ‘reasonably practicable’ to

ensure compliance with the relevant legislation were taken.432

South Africa is a multicultural society with 11 official languages and a population

approaching 53 million.433 While the traditional classifications of race groups in South

Africa are Black African, Coloured, White, India/Asian and others, it is generally

accepted that immigration into South Africa is on the rise, which in turn contributes to

an even greater diverse society and workforce.434

South Africa is undisputedly a diverse country. The ILO stated the following about its

member state: “[d]iversity is a key feature of South Africa, where 11 languages are

recognized as official, where community leaders include rabbis and chieftains, rugby

players and returned exiles, where traditional healers ply their trade around the corner

424 Snider “Racist Comments at Work: What Can Employers Do?” (April 2014) http://blogs.findlaw.com/free_enterprise/2014/04/racist-comments-at-work-what-can-employers-do.html (accessed 2015-11-05). 425 Landis and Grossett Employment Law: A Practical Guide for the Workplace (2005) 53.426 Neethling et al Law of Delict 353.427Neethling et al Law of Delict 353.428 Grogan Dismissal 179.429 Ibid.430 S 60(2) of the EEA; see also Kruger Racism and Law: Implementing the Right to Equality in Selected South African Equality Courts 223 fn 74.431 S 60(3) of the EEA.432 S 60(4) of the EEA.433 Statistics South Africa Mid-year Population Estimates P0302 2013. 434 Countries that contribute to immigration in South Africa include Zimbabwe, Democratic Republic of Congo, Somalia, Bangladesh and Nigeria; Statistics South Africa Mid-year Population Estimates P0302 2013.

66

from stockbrokers, and where housing ranges from mud huts to palatial homes with

swimming pools.”435

It is this author’s opinion that diversity should be celebrated, not tolerated. In order to

achieve this, employers should be proactive rather than reactive. Policies and

procedures on escalating comments of a racial nature should be made readily

available to all employees.

Grogan acknowledges that, even though South Africa has come a long way

“[a]ttitudes, including racist dispositions die hard.”436 South Africa has navigated racial

chicanes, overcame apartheid, and implemented legislation which has contoured one’s

human dignity, equality and freedom – however, “racist attitudes continue to fester in

certain quarters.”437 These attitudes occasionally find expression in the workplace, and

our courts have been clear on their stance. There is simply no room for racism in the

workplace or anywhere else for that matter!

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68

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Brink v Kitshoff NO 1996 (4) SA 197 (CC).

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Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).

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Lebowa Platinum Mines Ltd v Hill (1998) 19 ILJ 1112 (LAC).

Mbatha v Van Staden 1982 (2) SA 260 (N).

69

Medical Association of SA v Minister of Health 1997 (5) BLLR 562 (LC).

Minister of Education and Culture (House of Delegates) v Avzal 1995 (1) SA 30 (A).

Minister van Polisie v Ewels 1975 (3) SA 590 (A).

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Piliso v Old Mutual Life Assurance Co SA Ltd & Others (2007) 28 ILJ 897 (LC).

President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC).

Prinsloo v Van der Linde 1997 (3) SA 1012 (CC).

RAF v Mtati 2005 (6) SA 215 (SCA).

Saayman v Visser 2008 (5) SA 312 (SCA).

Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 428 (A).

Simela & Others v MEC for Education, Province of the Eastern Cape & Another 2001 (9) BLLR 1085 (LC).

S v Makwanyane 1995 (3) SA 391 (CC).

S v Mhlungu and Others 1995 (3) SA 1 (CC).

S v Mokgethi 1990 (1) SA 32 (A).

S v Van As 1967 (4) SA 594 (A).

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70

INTERNET SITES

Cawthon and Sgueglia “Black boss's n-word rant to black employee costs him, nonprofit $280,000” (September 2013) http://www.cnn.com/2013/09/03/us/new-york-racial-slur-lawsuit/index.html (accessed 2015-09-09).

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71

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NEWS ARTICLES

L Mofokeng “King of Kwaito still on his throne” (2012-03-16) City Press.

LEGISLATION

Agricultural Labour Relations Act 50 of 1994.

Asiatic Land Tenure Act 28 of 1945.

Constitution of the Republic of South Africa, 1996.

Education Labour Relations Act 146 of 1993.

Employment Equity Act 55 of 1998.

Employment Equity Amendment Bill 2012.

Franchise and Ballot Act 1892.

72

Glen Grey Act 1894.

Group Areas Act 41 of 1950.

Hut Tax 1884.

Immorality Act 1927.

Immorality Amendment Act 21 of 1950.

Industrial Conciliation Act 11 of 1924.

Labour Relations Act 66 of 1995.

Mines and Works Act 1911.

Natal Legislative Assembly Bill 1894.

Native (Urban Areas) Consolidation Act 1945.

Native Administrative Act 1927.

Native Building Workers Act 27 of 1951.

Native Trust and Land Act 1936.

Natives (Urban Areas) Act 21 of 1923.

Natives Lands Act 27 of 1913.

Population Registrations Act 30 of 1950.

Prohibition of Mixed Marriages Act 44 of 1945.

Representation of Natives Act 1936.

South Africa Act 1909.

Suppression of Communism Act 44 of 1950.

Transvaal Asiatic Registration Act 1906.

OTHER

De Vos “The Past is Unpredictable: Race, Redress and Remembrance in the South African Constitution” Lecture presented at the University of Cape Town on 14 September 2011.

Haslop and Woodhead “Labour Dispute Resolution” 2015 L.E.A.D 001 1 126 (Port Elizabeth Law School Notes) PLT.

Statistics South Africa Mid-year Population Estimates P0302 2013.

73