Reinstate unless relationship intolerable

2 Comments

1. 

   GilesFiles on December 23, 2016 at 10:41 am

   See also:
   The Constitutional Court and racist epithets: A stern warning to litigants, lower Courts and arbitrators?
   PAK le Roux
   Contemporary Labour Law 26:4 November 2016 p 40

   Comment by PAK le Roux

   The Court’s stand against racist conduct in the workplace is obviously the most important aspect of this decision. The message is that employers are required to treat this form of misconduct seriously and that employees who are dismissed for this type of conduct can expect little sympathy from the Courts. However, there is, as always, a qualification. There may be circumstances where dismissal is not justified. This is evident from the following excerpt –

   ‘[43] None of this should lead to the mistaken belief that the use of very strong derogatory language like kaffir would always militate against the reinstatement of an offending employee. The notion that the use of the word kaffir in the workplace will be visited with a dismissal regardless of the circumstances of a particular case, is irreconcilable with fairness. It is conceivable that exceptional circumstances might well demonstrate that the relationship is tolerable. But, this is certainly not such a case. Even then, a lot more would have to be set out by the offending employee to explain away the obvious intolerability of the continued working relationship. Contrary to Mr Kruger’s contention, an employee would have a bigger role to play to undercut the grossly offensive nature and effect of these dignity suffocating insults. It cannot be primarily the duty of the employer to explain the intolerability that flows effortlessly from the obviously repugnant conduct of the employee.’

   The Constitutional Court also emphasised the duty of a commissioner to actively consider the appropriate remedy to be granted to an unfairly dismissed employee, taking into account the provisions of sections 193 (1) and (2).
   Kruger’s legal representative argued that SARS failed to discharge the onus that rested on it to show that the trust relationship had been destroyed. SARS should have led evidence to show that his conduct rendered a continued employment relationship intolerable. SARS argued that it had led such evidence. In this context the Court’s view expressed in the last two sentences of the above excerpt is of interest.
   It appears to place a duty on an employee to persuade a commissioner why dismissal is not justified in the case of racist conduct.

2. 

   GilesFiles on December 23, 2016 at 10:55 am

   Reported
   (2017) 38 ILJ 97 (CC)
   [2017] 1 BLLR 8; [2016] JOL 36804 (CC)
   BLLR headnote
   Dismissal – Misconduct – Racist language – Employee twice referring to superior as “kaffir” – Term so egregiously offensive and insulting that employee not entitled to reinstatement, even though employer dismissed employee without hearing required by binding collective agreement.