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Contribution by Durban Attorney - Fawzia Khan

Is it fair for an employee to be dismissed for making false claims of racism?

The CEO of a company was alleged to have used racist words, including the “k-word”, when he admonished a group of his employees for playing a game of cards outside the work premises. It was later found that the allegations of racism were false and the employer company was justified in dismissing the employees for making these words these false claims.

Based on our turbulent apartheid history South Africans continue to be plagued by racism. For that reason, false allegations of racism could permanently ruin a person’s name and reputation. In the case of the CEO it could have a detrimental impact to his name and reputation. His career as CEO could also be jeopardised and it could even lead to the loss of his employment as CEO of the company. Consequently, the CCMA held that the dismissal of the employees under these circumstances was justified.

The case in point was NUMSA obo Baloyi v O-Line Pty Ltd. In this case, Mr. Baloyi and some of his co-workers who were found by their Company CEO, playing cards in front of the company premises. A disciplinary hearing was then held 17 October 2018 arising from the card game incident. The employees were found guilty of insubordination and issued with a final written warning. However Mr. Baloyi put in a grievance against the CEO alleging that on the day in question, the CEO shouted and swore at them using expletives, called them idiots and that he called them the “K-word” in Afrikaans. Baloyi said he reported this incident to the NUMSA shop steward but that the NUMSA official “forgot” to submit it to the Company. Thus the grievance was submitted on the morning of the disciplinary hearing.

The CEO denied having made the racist utterances. He also said that he is English speaking having come from Zimbabwe and did not know Afrikaans. The employer did not accept the grievance as having substance, issued a second disciplinary hearing and charged the employees for deliberately supplying incorrect and/or falsified information. They were then dismissed.

The employees took the matter to the CCMA for arbitration. At the arbitration, the Company produced evidence showing that the CEO did not speak Afrikaans and accordingly could not have made those utterances in Afrikaans. The Commissioner drew a negative inference by the fact that the allegations of racism were only made when the disciplinary proceedings were instituted and found on a balance of probabilities that the employees were guilty of making false allegations.

The next question asked was whether dismissal was an appropriate sanction under the circumstances. The Commissioner found that the gravity of the matter was so serious that dismissal was appropriate. He said that racism continues to plague our society based on our turbulent apartheid past. The Commissioner said that these untrue racist claims could thus have caused irreparable reputational damage to and could even end the CEO’s career with the Company. Since the employees showed no remorse for their conduct, the Commissioner found their dismissals to be both substantively and procedurally fair.

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