We know that using the “K” word and similar obvious ones in the workplace is racist and warrants dismissal. But sometimes the words are not so obvious or direct but may still be considered racist by implication.
A case in point unfolded recently in the City of Cape Town[1] during an altercation between a white manager and a black employee. The employee took offence when his manager gave him guidance on how to fill in reports to account for his time. The employee unleashed a deluge of aggressive emails accusing his manager of incompetence. The emails were sent to other employees as well.
The tirade came to a head when the employee accused the manager of being racist and “…worse than Vervoed”. This was the last straw for the manager who felt the working relationship had been damaged beyond repair. The employee was charged and dismissed for insubordination and for sending a racist and derogatory email.
The arbitrator found the words were not racist and reinstated the employee. The labour court found the decision was one which a reasonable decision maker would have made – but added a final written warning after taking mitigating factors into account.
The Labour Appeal Court disagreed. It found that referring to someone as worse than Vervoed was an unacceptable racist slur. It was made more serious because it constitutes hate speech and is prohibited by the Constitution. It set the award aside and replaced it with an order that the dismissal was substantively fair.
TIP: A racist slur is a serious and dismissible offence. Certain words and phrases are generally recognised as being racist and warrant dismissal if there is clear evidence they were used. But less obvious words and phrases can be equally racist if they can be interpreted to convey a racist message. The meaning of the words should be considered in the context in which they were used. The reference to Vervoed with its racist connotations was clearly intended to indirectly brand the manager as a racist by association.
[1] City of Cape Town v Freddie & Others [2016] 6 BLLR 568 (LAC)
Source: De Rebus August 2016 p48
