City of Cape Town v Freddie (CA13 /14) [2016] ZALAC 8 ; [2016] 6 BLLR 568 ; (2016) ILJ 1364 (15 March 2016) per Ndlovu JA [Tlaletsi DJP and Davis JA concurring]

The LAC allowed the employer’s appeal and set aside a reinstatement award in favour of an African male employed initially as a general worker but who rose over 18 years to the level of an assistant professional officer after graduating with BTech degree and earning R205 140-00 per annum when he was dismissed in March 2012.

He was alleged to have been grossly insubordinate by acting in an insolent, provocative, aggressive and intimidatory manner towards the management team and sending a derogatory, insolent, racist, provocative and offensive email.  He was initially reinstated and this award was upheld in the Labour Court on 15 February 2015 and has now been set aside on appeal.

Excerpt without footnote

“[55]      However, it seems to me, given the painful and shameful atrocities perpetrated against the Black people in this country during the so-called Verwoerdian period, one should expect to see all right-minded and peace-loving people not to dare to be even perceived as associating themselves with anything to do with Verwoerd and his lieutenants, as well as his similarly-minded successors.

Therefore, for Freddie to describe Robson, without any justifiable cause, as being “even [worse] than Verwoerd” was an offensive racial insult, absolutely unacceptable for any employee to use against any other employee in the workplace, irrespective of whether the accuser is white or black.  Besides, it ought to be recalled that the use of racist language against a person or class of persons also constitutes hate speech and is prohibited and outlawed under the Constitution and the law.”