Dismissing an employee for racism

There are different reasons why an employer might consider firing an employee. After teacher Keith Arlow had been fired from St John’s College in Johannesburg for being found to have victimised pupils based on their race, the question of dismissal due to racism was brought up.

Initially, Arlow was issued with a final written warning, stepped down from senior positions he held at the school and allegedly received a pay cut. However, Gauteng Education MEC Panyaza Lesufi, was not satisfied with this and prompted a dismissal.

When can someone be dismissed?

According to Schedule 8 of the Labour Relations Act (LRA), dismissal is only appropriate for those serious offences that make “a continued employment relationship intolerable”.

Such serious offences could include: gross insubordination, endangering the safety of others, wilful damage to the employer’s property, gross dishonesty and assault.

However, it’s important to note that even these offences will not automatically give the employer the right to dismiss. This is because the person carrying out the dismissal must consider:

• Circumstances such as the employee’s length of service, previous disciplinary record, personal circumstances etc.
• The job’s context and purpose. Sleeping on the job, for example, might be serious for a security guard, but not for a clerk.
• Other circumstances. For example, if an employee fell asleep because he had to work without a break.

Dismissing an employee for racism

In the case of Ceppwawu obo Evans v Poly Oak (2003, 12 BALR 1324), the employee was dismissed for making a racist comment during an altercation.

He was charged with using offensive and inappropriate language. He claimed that he had done so in jest and had not intended to hurt the other person. The employer claimed that the employee had breached its code of conduct which was designed to improve relations in the workplace. The arbitrator upheld the dismissal, despite the employee having apologised. The arbitrator also noted that the Labour Appeal Court (in Crown Chickens (Pty) Ltd v Kapp and others 2002, 11 LAC 6,12,3) had described racism in the workplace as “a plague and a cancer that must be rooted out”.

The court said that “courts should deal with racism and racial slurs in a manner that gives expression to the legitimate feelings of outrage experienced by reasonable people in a society against racism”.
Conclusion

Because of South Africa’s past, racism in the workplace cannot be tolerated. However, the employer needs to prove that the employee did commit the offence and that the act itself was serious enough for dismissal. Also, when the offending employee argues mitigating circumstances, the employer must give them consideration.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. (E&OE)

Reference List:

• “Racist St John’s College teacher fired with immediate effect”. Ndileka Lujabe, City Press. 2017-07-28. http://city-press.news24.com/News/racist-st-johns-college-teacher-fired-with-immediate-effect-20170728. [Accessed on 11 August 2017]
•  “What Constitutes Intolerable”. The South African Labour Guide. Ivan Israelstam. http://www.labourguide.co.za/general/398-in-the-firing-line-what-constitutes-intolerable. [Accessed on 11 August 2017]
• Ceppwawu obo Evans v Poly Oak [2003, 12 BALR 1324]