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It’s late for racism – SARS v the CCMA and Others 2016 ZACC 38

It’s late for racism – SARS v the CCMA and Others 2016 ZACC 38

Mr Jacobus Johannes Kruger (“Kruger”) was employed by the South African Revenue Services (“SARS”) from November 1991 and served as an anti-smuggling officer at the time of his dismissal. On the 27th of July 2007, after an altercation with Mr Abel Mboweni (“Mboweni”), his superior at the time, he referred to him as a ‘k*ffir’.

The charges brought against him, and the internal hearing

Consequently and in accordance with the relevant agreements in place at the time, SARS arranged a disciplinary hearing where Kruger faced the following charges:

  1. That he had said: “Ek kan nie verstaan hoe k*ffirs dink nie” (I cannot understand how k*ffirs think)
  2. That he had also said: “A k*ffir must not tell me what to do”
  3. By so doing he used the racist remarks ‘k*ffir’ or alternatively he used derogatory and abusive language towards his Team Leader Mr Mboweni

Kruger pleaded guilty to all charges at this internal disciplinary hearing and a sanction was negotiated between the parties, with the material terms thereof being that:

  1. Mr Kruger received a final written warning valid for 6 months as well as suspension without pay for 10 days; and
  2. He should undergo counselling

The SARS Commissioner altered the first sanction and elevated it from a formal warning to a dismissal. Kruger was not notified of this elevation and was not afforded an opportunity to make representations prior to the taking of such decision. He therefore challenged the fairness of his dismissal at the Commission for Conciliation Mediation and Arbitration (“CCMA”).

The dispute at the CCMA

The main issue, as agreed between the parties, was whether the SARS Commissioner was entitled in law to substitute the sanction imposed by the Chairperson of the disciplinary enquiry.  The CCMA arbitrator hearing the matter concluded that the aforementioned substitution was impermissible. In so doing, she relied on the fact that SARS has, in terms of the collective agreement that binds it, effectively waived its common law powers to reverse the decision of the Chairperson of the disciplinary enquiry.  Without considering the merits and demerits of the case, and on the basis of various Labour Appeal Court judgments, the CCMA arbitrator ruled that the SARS Commissioner exercised power that was no longer available for him to exercise. In making an award, the CCMA arbitrator restored the position as it was prior to the Commissioner’s intervention. (i.e. ordered Kruger’s reinstatement)

The Labour Court; the Labour Appeal Court & the Constitutional Court

SARS subsequently challenged the correctness of the CCMA arbitrator’s decision at the Labour Court, but the application was dismissed. It was dismissed for a second time at the Labour Appeal Court, which meant that SARS had no choice but to launch a Constitutional Court application.

Notwithstanding the existence of further issues, the crisp issue for the Constitutional Court to decide upon was whether the reinstatement of Kruger was unreasonable and must therefore be set aside. Unreasonableness is one of the grounds on which an arbitrator’s award, issued under the auspices of the CCMA, in respect of dismissal dispute may be reviewed and set aside. Case law indicates that an unreasonable decision in this context refers to a decision that “no reasonable decision maker could have reached.

In terms of section 193 of the Labour Relations Act (“the Act”) an arbitrator may order the reinstatement, re-employment or compensation to an unfairly dismissed employee.  This section further indicates circumstances in which an arbitrator/Labour Court cannot order reinstatement or re-employment. Section 193(2) states that “The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless… (c) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable

SARS’ contention was twofold:

(1) Mr Kruger was found guilty of racism in the workplace and this amounts to serious misconduct;

(2) his continued employment would thus be intolerable.

The Constitutional Court held that in this instance, two inextricably linked incidents of directing racial slurs towards fellow employees occurred. The abusive and derogatory language was directed at Mboweni and all his fellow African workers. “he [Kruger] impugned their thinking .. and undermindingly pronounced on their perceived inherent leadership or managerial incapabilities. None of his African colleagues were… worthy of effectively exercising authority over him”. The Constitutional Court stated that properly construed and contextualized, these racial statements were enough to lead the Arbitrator to the decision that reinstatement was the most inappropriate remedy.

The insinuation of this decision by the Arbitrator is that language of this nature can, at some remote level, be tolerated and indeed justified in the work place. The Constitutional Court went to great lengths to thoroughly traverse the multitude of problems surrounding the notion of racism, especially when viewed through the prism of South Africa’s historical background.

In so doing however, the court emphasized that a one-size-fits-all approach to the use of ‘k*ffir’ in the workplace cannot be adopted. It held that the notion that the use thereof in the workplace automatically leads to a dismissal irrespective of the surrounding circumstances is irreconcilable with fairness. There may be a scenario in which, notwithstanding the use of the k-word, the relationship between the parties may be tolerable.

The CCMA arbitrator thereafter failed to pay attention to the wording of section 193(2) of the Act, which required her to consider the possibility of whether this was a case where reinstatement was precluded. She furthermore failed to provide reasons for the reinstatement of Kruger despite the contention that his continued employment would render the workplace intolerable. Additionally, she did not provide any insight as to why she thought Kruger’s continued employment would be tolerable for his fellow employees. These factors ought to have been considered before ordering reinstatement, and it is pertinently clear that they were not.

Mogoeng CJ in his judgment emphasized that the “the use of the word k*ffir is the worst of all racist vitriols a white person can ever direct at an African in this country. To suggest that it is necessary for the employer to explain how that extremely abusive language could possibly break the trust relationship and render the employment relationship, betrays insensitivity…” The Chief Justice highlights, in no uncertain terms, that where there is such an injurious disregard for human dignity and racial hatred is spewed, it is natural that the relationship between the employer and employee becomes intolerable. No amount of linguistic tap dancing can lighten this obnoxious and dehumanizing conduct.

In arriving at conclusion that the CCMA arbitrator’s decision was unreasonable, it is appropriate to take note of the court’s views on the concept of racism. Attention is drawn to the fact that Kruger’s conduct constituted more than just an outburst. He explained the utter contempt he had for Mboweni and all other SARS employees, the implication thereof being that they were so inherently inferior that none of them is fit to tell him [Kruger] what to do. This is so, notwithstanding the educational qualifications, position or experience Mboweni had, but purely because of his skin colour. Such conduct, in the view of the court, must be dealt with firmly but fairly and in this regard, mollycoddling cannot cut it.

The Arbitrator failed to take cognizance of the surrounding and overarching racism issues prevalent in the country. This was coupled with her incorrect application of the Act and the duty on SARS, as an organ of state, to uphold the values enshrined in the Bill of Rights.

The Constitutional Court concluded that the decision by the Arbitrator to reinstate Kruger was an unreasonable one, and set it aside.  The appeal was thus upheld in so far as it related to Kruger’s reinstatement (i.e. Kruger’s dismissal was upheld), but SARS was ordered to compensate him for the equivalent of 6 months pay in the interest of fairness.