Mr Bester, who was represented by the South African Equity Workers Association (“SAEWA”), was an employee of Rustenburg Platinum Mine (“Applicant”). In April 2013, Mr Bester attempted to raise a parking issue with the Applicant’s Chief Safety Officer (“Mr Sedumedi”). His attempts were ignored which led to Mr Bester allegedly interrupting a safety meeting, pointing his finger at Mr Sedumedi and loudly stating: “verwyder daardie swart man se voertuig” or else he would approach management.
As a result of referring to a co-worker as a “swart man”, and breaching the workplace rule that prohibits abusive and derogatory language, Mr Bester was dismissed.
In the Commission for Conciliation, Mediation and Arbitration (“CCMA”), the Commissioner found that the words “swart man” were used as a descriptor and could not be considered racist. The dismissal was held to be both substantively and procedurally unfair, awarding reinstatement and back-pay.
In the Labour Court (“LC”), the LC considered the fact that the Applicant had circulated a memorandum to all employees, days before the incident, indicating that the mine had a zero-tolerance policy for abusive and derogatory language in the workplace. As a result, the LC held that the use of the words “swart man”, within the context, was derogatory and racist which constituted an act of serious misconduct and warranted a dismissal.
In the Labour Appeal Court (“LAC”), it was held that the LC had erroneously applied a subjective test and stated that the correct test, to determine whether the phrase “swart man” was derogatory, was objective. In this context, the LAC found that there was more than one plausible inference which could be drawn from the proven facts. Rather than using the phrase in a derogatory and racist manner, Mr Bester used the phrase as a way to describe the driver, whose name he did not know.
The Constitutional Court (“CC”) held that the correct test was whether a reasonable, objective and informed person would perceive ‘swart man’ to be racist and derogatory. In a unanimous judgment, Theron J found that the approach adopted by the CCMA and LAC, together with their findings that the phrase “swart man” was racially innocuous and neutral, failed to recognise the impact of the legacy of apartheid and racial segregation. The CC held that the LC was therefore correct in reviewing and setting the CCMA award aside.
With regard to the appropriate sanction, the CC held that an acknowledgment of wrongdoing by Mr Bester would have gone a long way in showing that there was a possibility of rehabilitation. However, he did not demonstrate any remorse for his actions and made no attempt to apologise. Under these circumstances, dismissal was an appropriate sanction.
The appeal was upheld and the decision made by the LAC was set aside. No order as to costs was made.
This decision is the first time the CC has dealt with indirect forms of racism in the workplace.
Written by Jordan Dias and supervised by Pierre van der Merwe, 12 June 2018