Recently, there has been an unsettling rise in the instances of racial slander in the workplace. In September 2018 we posted and article about an employee who was dismissed for making a racial comment.
For example, ex-DJ Sasha Martinengo was fired – with immediate effect – from his position at Hot 91.9 for calling the leader of the EFF, Julius Malema, a “monkey”. Velaphi Khumalo – employee of the Gauteng Sports, Arts, Culture and Recreation – made the comment that whites in South Africa need to be dealt with like Hitler handled the Jews in Nazi Germany. This comment of his has been seen as hate speech and he is facing a disciplinary enquiry. The action taken by those in a superior position to these individuals is well documented in the media. However, is this the norm in terms of dealing with cases of racial insults?
It is not only racial comments that is a concern, there is also an increase in the use of derogatory remarks in the workplace in terms of gender, sexual orientation and so on. For example, many times words are used, in casual conversation, to describe persons with a different sexual orientation that are offensive and discriminatory towards those people. Just one derogatory word can get an employee dismissed.
Using derogatory language is an issue that has been in the public domain quite frequently. The Constitutional Court (CC) has confirmed that this type of conduct is completely unacceptable. In Rustenburg Platinum Mine v Saewa Obo Meyer Bester & Others (CC), a senior training officer was dismissed for insubordination, for making derogatory remarks and using the words “swart man” when addressing an issue. It is clear, from the highest court in the land, that these types of remarks are derogatory and racist and warrant dismissal.
In Rustenburg Platinum Mine v SAEWA obo Bester and Others (17 May 2018), it is shown that it can be a dismissible offence for an employee to use racial statements about their employers. In Shoprite Checkers (Pty) Ltd v Samka and others – (2018), it is shown, in cases of racial slander, the extent to which the employer has a responsibility to protect its staff from customers who abuse them verbally.
Employees and managers therefore need to be aware and refrain from any such comments and/remarks in the workplace.
If an employee’s words constitute harassment or discrimination, the manager may have a legal obligation to reprimand the employee. That reprimand may even cost the employee his/her job. The best way an employee can avoid losing his/her position over words, such as racial slurs, is to understand the legal implications of offensive language in the workplace.
Racial remarks outside the workplace
– Wallace Albertyn is a Senior Associate and Labour Law Practitioner at LabourMan Consultants.