THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
C ase No: CA 18/2024
In the matter between:
THE COMMERCIAL STEVEDORING AGRICULTURAL
AND ALLIED WORKERS UNION obo VUYANI QOMOYI Appellant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
ANTHONY RUGGEIRO N. O Second Respondent
NAMAQUA WINES (PTY) LTD Third Respondent
Heard: 19 March 2026
Delivered: 08 April 2026
Coram: Nkutha-Nkontwana JA, Tokota and Moshoana AJJA
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
JUDGMENT
MOSHOANA, AJA
Introduction
[1] South Africa emerged from an ugly past marred by racial segregation and
domination of one race over the other races. The white race was considered and
made to be a superior race to all the other races. The preamble of the
Constitution of the Republic of South Africa in recognition of the repulsive past
states amongst others that it strives to ‘heal the divisions of the past and
establish a society based on democratic values, social justice and fundamental
human rights.’
[2] In this judgment, for foundational and context purposes, certain terminologies
deserve close scrutiny. Those are; racism; racist ; white; and racist tendencies or
behaviour. Racism is the prejudice, discrimination, or antagonism directed
against a person or people based on their membership in a particular racial or
ethnic group. A racist is a person who holds prejudice, stereotypes, or animosity
against individuals based on their race or ethnicity, often believing their own race
is superior. Wh ite as a skin colour, is one of the race classifications in South
Africa. In the past , the government of the day , through its apartheid policy,
fostered and promoted what became known as white supremacy, which is the
racist belief that white people are superior to other races, aiming to maintain
white power, privilege, and societal dominance.
[3] Racist tendencies refer to subtle, often subconscious behaviours, attitudes, or
prejudices that stereotype, excludes , or devalue an individual based on race or
ethnicity.
3
[4] Central to this appeal lies a question whether calling out someone as a racist
makes the caller a racist or thereby, the caller displays raci st tendencies. In the
present appeal, one Mr Qomoyi was dismissed because he had referred to his
superior, one Mr Meyer as a white racist. In fact , Mr Meyer is a white person.
Being referred to by one’s racial classification cannot on its own amount to racist
tendencies. Thus, the sting in this appeal is the epithet “racist.”
[5] As it shall be demonstrated in due course, a proper understanding of these
terminologies and the taking into account of the historical and societal context ,
provides an appropriate guidance to any decision maker dealing with sensitive
and sufficiently opaque disputes invol ving racial discriminatio n. T he present
appeal lies against the order of the Labour Court handed down on 05 July 2024,
in terms of which the Labour Court dismissed with costs an application seeking to
review and set aside an arbitration award issued by a Commission for
Conciliation, Mediation and Arbitration ( CCMA) commissioner. The Labour Court
refused to grant the appellant leave to appeal to this Court. Leave to appeal was
granted by this Court on 13 February 2025. The appeal is opposed by Namaqua
Wines (Pty) Ltd (Namaqua).
Background facts pertinent to the present appeal
[6] It bears recognition at this embryonic stage that according to reports from human
rights bodies, researchers, and trade unions, racial discrimination and
exploitation are considered rife on many South African farms. Black farmworkers
frequently report abuse, low wages, and precarious living conditions. A judicial
notice of such realities is not out of kilter. Namaqua is a major producer
responsible for approximately 12% of South Africa’s wine production. It operates
a full value chain from vineyard management and harvesting to bottling and
marketing. A vineyard is an agricultural plantation of grape- bearing vines,
marketing. A vineyard is an agricultural plantation of grape- bearing vines,
primarily cultivated for winemaking. Therefore, Namaqua operates in the farming
or agricultural industry. It is a wine farm that employs about 280 permanent
employees and an additional 150 sessional workers.
4
[7] Mr Vuyani Qomoyi commenced employment with Namaqua on 27 August 2019
as a general worker. In the course of his employment, he became one of the
shopstewards of the Commercial Stevedoring, Agricultural and Allied Workers
Union (CSAAWU), hereafter, the trade union.
[8] On or about 3 August 2021, Mr Qomoyi, whilst busy with his normal duties was
called, without seeking permission from his supervisor , by the bottling manager,
Mr Meyer to accompany him to the Human Resources Office (HR). Other than
being told that he is going to be a witness of something, Mr Qomoyi, had no
inkling, despite his persistent request to be placed in the know, as to what was
about to unfold at the HR offices. At the HR offices, he heard, for the first time, Mr
Meyer telling one Mr Maimane, a trade union member, that he had been
dismissed. In his capacity as a shopsteward, Mr Qomoyi was not involved in any
process leading to the dismissal of Mr Maimane. Mr Qomoyi , believing that the
dismissal of Mr Maimane was unfair, raised his objections to what was then
unfolding. It became common cause that in the process of a heated debate over
the dismissal of Mr Maimane, Mr Qomoyi in a pitched voice, referring to Mr
Meyer, uttered words to the following effect; you are a racist, stop being a racist
you are firing black people. The incident was captured on video footage. Before
us, it was contended by counsel for Namaqua that Mr Qomoyi repeated those
words about eight times on that day. I pause to remark that nothing magical turns
on this contention. It was a one-day heated event.
[9] Ultimately, Mr Qomoyi was suspended and was later hauled before a disciplinary
hearing chaired by an external attorney. The allegations to be answered by Mr
Qomoyi were couched in the following terms:
‘1. Gross insubordination, serious and deliberate disrespectful behaviour towards
Management in a senior capacity – in that on 3 August 2021, near or at the
Management in a senior capacity – in that on 3 August 2021, near or at the
Human Resources Offices, you pointed your finger at your superior, Mr Albrie
Meyer, and called him a “White Racist”.
5
2. Displaying Racist behaviour – in that on 3 August near or at the Human
Resources Offices, you pointed your finger at your superior, Mr Albrie Meyer, and
called him a “White Racist”.
3. Refusal of a lawful and reasonable order/instruction – in that on 17 August
2021, you refused to translate a message from your superior, Mr Albrie Meyer, to
the employees present.
4. Breach of Trust – in that as a result of your actions as per charge 1, 2, 3, the
trust relationship between yourself and your superior has irreparably broken.
[10] The appointed external chairperson only found Mr Qomoyi guilty of charge 1, in a
lesser form (insolence), and charge 2. For the lesser charge 1, he recommended
that Mr Qomoyi be issued with a final written warning and for charge 2 that he be
dismissed. I pause to remark that there was certainly an unfair splitting of
charges between charges 1 and 2. Given the view I take at the end, nothing
much is to be made of this.
[11] On 15 October 2021, Mr Qomoyi received communication from Namaqua under
the hand of one Mr Xander Joubert, couched in the following manner:
‘NOTICE OF DISMISSAL
This serves to confirm the decision handed down at the disciplinary hearing held
on 13, 14 and 23 September 2021.
You are dismissed from the employ of this company for:
1. Displaying Racist behaviour – in that on 3 August near or at the
Human Resources Offices, you pointed your finger at your superior,
Mr. Albrie Meyer, and called him a “White Racist”…’
(Own emphasis)
[12] Undoubtedly, Mr Qomoyi was dismissed for reason of displaying racist behaviour
and nothing more. Aggrieved by the fairness of the dismissal of Mr Qomoyi, the
trade union referred a dispute alleging unfair dismissal to the CCMA for
6
resolution. Conciliation failed to resolve the alleged dispute. Commissioner
Anthony Ruggiero was appointed to resolve the dispute through arbitration. After
hearing evidence, the commissioner published his arbitration award on 12 April
2022. He found that the dismissal of Mr Qomoyi was both substantively and
procedurally fair. He then dismissed the claim of Mr Qomoyi.
[13] Disenchanted by the arbitration award, the trade union launched a review
application in the Labour Court . As indicated at the dawn of this judgment, the
Labour Court dismissed the review application with an order as to costs, hence
the present appeal.
The arbitration award
[14] The commissioner rendered a detailed arbitration award laden with various case
authorities on the subject of dismi ssal for utterance of “racial slurs .” Regarding
the reason for the dismissal of Mr Qomoyi – displaying rac ist behaviour, the
commissioner found that Mr Qomoyi’s justifications of racial tirade against Mr
Meyer was without merit. With considerable regret , the commissioner devoted a
considerable amount of time justifying the rejection of the justifications advanced
by Mr Qomoyi without first addressing the crucial antecedent question of whether
the uttered words are racist ; amount to racism and or raci st behaviour. This is
more like putting the cart before the horse. The commissioner concluded that the
conduct of persistently calling Mr Meyer a white racist who fires black people
without representation was not justified, as such Mr Qomoyi ’s dismissal was
substantively fair.
[15] It is perspicuous that the approach taken by the commissioner was that he was
dealing with a proven racist tirade, hence he devoted much time on rejecting the
alleged justifications advanced by Mr Qomoyi for calling Mr Meyer a white racist.
Clearly, the commissioner departed from the premise that calling Mr Meyer a
white racist is in of itself a conduct displaying racist behaviour; hence he labelled
white racist is in of itself a conduct displaying racist behaviour; hence he labelled
it a racist tirade. A racist tirade is a long, angry, and often public outburst of verbal
abuse, utilizing racial slurs, hateful stereotypes, or dehumanizing language to
7
demean individuals or groups based on their race, ethnicity, or nationality. It is
characterised by intense hostility, intolerance, and a clear expression of hateful
prejudice.
[16] Nowhere in his arbitration award does the commissioner specifically address the
veritable question of whether Mr Qomoyi displayed racist behaviour – being the
reason for his dismissal. The commissioner simply considered the utterance
white racist in isolation and presumed guilt on the part of Mr Qomoyi. Section 188
(1)(a)(i) of the Labour Relations Act
1 (LRA) is clear . A dismissal is unfair if the
employer fails to prove that the reason for dismissal is a fair reason related to the
employee’s conduct. Section 192 of the LRA imposes the onus of proof on an
employer. Seeking to have an employee first justifying the utterance amounts to
a reverse onus. It remains the statutory duty of a commissioner to determine
whether a dismissal is fair or not. It was therefore incumbent on the
commissioner to be satisfied that on the balance of probabilities, Mr Qomoyi is
indeed guilty of displaying racist behaviour. Generally, a racist behaviour is any
action, attitude, or policy that treats people unfairly, insults, or humiliates them
based on their race, colour, descent, national origin, or ethnicity. It is rooted in
prejudice and the belief that one race is superior to another, often leading to
discrimination, harassment, violence, and systematic inequality.
[17] As it shall be demonstrated later in this judgment, t he Constitutional Court has
already approved a particular test developed by the Labour Appeal Court (LAC)
when dealing with utterance of racial slurs, epithets, or tirades. The arbitration
award of the commissioner does not demonstrate any application of such a test.
Ineluctably, the commissioner ignored binding authority by higher courts.
The Labour Court Judgment
[18] The well-known and approved test for review is whether an arbitration award is
[18] The well-known and approved test for review is whether an arbitration award is
one that a reasonable decision maker may reach. Where a commissioner , as in
this case, ignores binding authority, it can hardly be said that his or her arbitration
1 Act No 66 of 1995 as amended.
8
award is one that a reasonable decision maker may reach. Differently put, had
the commissioner applied the test dev eloped by the LAC and approved by the
Constitutional Court, the outcome would have been that Mr Qomoyi is not guilty
of displaying racist behaviour, as such his dismissal would have not been for a
fair reason.
[19] At a review application stage, a court of review is guided by the findings made by
the commissioner in his or her arbitration award. In other words, a court of review
is not itself re -hearing the dispute already determined by an arbitrator as
statutorily commanded. After having confirmed and approving the rejection of the
justifications raised by Mr Qomoyi at the opening address at arbitration, the
Labour Court itself gravitated towards applying the test approved in Rustenburg
Platinum Mine v SAEWA obo Bester and others
2. As stated before, nowhere in
his arbitration award does the commissioner demonstrate any application of the
Bester test. That failure on its own was reason enough for the Labour Court to
conclude that the arbitration award is not one that a reasonable decision maker
would reach. To my mind, the Labour Court impermissibly straddled into issues,
though extremely relevant, not considered by the commissioner. Such is evident
from the following:
‘[44] Having disposed of the purported justification grounds relied on by
Qomoyi, one must turn to consider what he said, without cause, reason, or
justification for it…
[45] As the second respondent understood, the utterances by Qomoyi must be
considered in the context it was used and considering all the events as a whole…
[46] Applying this approach in Rustenburg Platinum Mine supra, the real
context….’
(Own emphasis)
2 [2018] 8 BLLR 735 (CC).
9
[20] In terms of section 145(4)(a) of the LRA, the Labour Court is only empowered to
determine the dispute once the arbitration award is set aside. The Labour Court
is not permitted, as it were, to ex post facto -after the fact , augment the
arbitration award by determining issues left out of account by a commissioner.
What the Labour Court did, as evident above was to determine the dispute
without first setting the arbitration award aside. The Labour Court is simply not
permitted to do so. Similar to the commissioner, the Labour Court placed much
store on the judgment of the Labour Court in SA Chemical Workers Union and
Another v NCP Chlorchem (Pty) Ltd and others
3. In essence, the Chlorchem
judgment concluded amongst others that ‘if an employee, without reasonable
cause therefor, accuses a fellow employee of being racist or of displaying a racist
attitude, it will constitute a very serious form of misconduct ’
4. This was said
before Bester and is clearly inconsistent with the approved test.
[21] The Labour Court also reached the following conclusion:
‘Surely, it cannot be clearer than that. Simply put, labelling someone as a racist
when there is no truth, cause or justification for that label, is in itself racist. It
follows that these kinds of accusations should only be made with great
circumspection.’
(Own emphasis)
[22] With considerable regret , this Court does not agree that mere labelling, is in of
itself racist or constitutes a display of racist behaviour . In reaching that
conclusion, as it shall be demonstrated in due course, the Labour Court
unfortunately erred. After considering a number of case authorities, where
different utterances were made under different circumstances and context, the
Labour Court reached the following conclusion:
3 (2007) 28 ILJ 1308 (LC). The commissioner had cited the judgment as that of the Labour Appeal Court in his
award.
4 Ibid at para 31.
10
‘[60] In sum, and based on the authorities discussed, it is my view that
accusing a manager of being a ‘ white racist’ would prima facie constitute racist
conduct and is an utterance that is undoubtedly racially charged. Meyer testified
that he found the utterances to be hurtful and prejudicial to him, and undoubtedly,
such utterances would objectively be perceived, by all the employees who
witnessed it and/ or in whose earshot it happened, to be racist in nature.’
(Own emphasis)
[23] The conclusion of prima facie, reached by the Labour Court implies that the
utterances would, without more, constitute a racist behaviour. I am unable to
agree. It is also clear that the Labour Court applied the subjective test when
considering how Mr Meyer felt about the utterance. In an attempt to apply the
objective test, the Labour Court , as it should, did not use a reasonable person
test. It confined itself to the persons who allegedly heard Mr Qomoyi, without any
objective evidence whether the alleged people perceived what they allegedly
heard as a racist behaviour. In Bester, witnesses who heard what Mr Bester said,
testified and made their perception clear. In this matter , Mr Meyer was the only
person who testified about his own perception and feelings. With considerable
regret, that is not how the reasonableness test is to be applied.
Evaluation
[24] Given the history of this country , matters involving allegations of racism require
careful consideration. They are not an open and shut cases simply because
words like racist are uttered. They are not necessarily easy matters to navigate
through. In this matter, it is true that Mr Qomoyi uttered the words white racist
and directed them to Mr Meyer. The key question that required careful
consideration was whether calling Mr Meyer a white racist is in of itself a racist
behaviour. Put differently, does the name calling make Mr Qomoyi a racist
himself? Although racial slurs are inappropriate conduct and can be hurtful and
himself? Although racial slurs are inappropriate conduct and can be hurtful and
upsetting, it does not axiomatically follow that the utterer of the slurs is
11
necessarily a racist or displays racist behaviour . The Constitutional Court in
Bester provided the following useful guideline in matters of this nature, it said:
‘[38] … the use of the words “swart man” per se, is not racist and that the
context within which the words were used would dictate whether they were used
in a racist or derogatory manner. It was also accepted that the test to determine
whether the use of the words is racist is objective – whether a reasonable,
objective, and informed person on hearing the words would perceive them to be
racist or derogatory. This is in accordance with the test for whether a statement is
defamatory, as enunciated in Sindani:
“The test to be applied is an objective one, namely what meaning the reasonable
reader of ordinary intelligence would attribute to the words read in a context of
the article as a whole. In applying this test, it must be accepted that the
reasonable reader will not take account only of what words expressly say but
also what they imply.’5
(Own emphasis)
[25] The test demands that one must consider the words first and determine whether
the words objectively viewed were used by the utterer in a racist manner. In that
exercise, the utterer is not necessarily considered but the words uttered or used
are considered. In order to apply the test correctly, in this particular instance, it
ought to be accepted that referring Mr Meyer as a white person cannot per se be
racist or derogatory. As stated before, in this instance, the sting is the use of the
word racist. The Court in Bester approved what the LAC stated, when it said that:
“the test is not based on how the employer understood the words nor on the
subjective feelings of the person/s to whom the remark was made, but whether a
reasonable, objective and informed person would on the correct facts perceive it
to be so.”
6
5 Ibid fn 2 at para 38.
6 Ibid fn 2 at para 45.
12
[26] The correct facts in this particular matter are that unexpectedly, it would seem, as
it was never done before, Mr Meyer called Mr Qomoyi to go and witness, in fact ,
a dismissal of a black worker. It became common cause that Mr Qomoyi as a
shopsteward was never part of the process leading to the dismissal of the black
worker concerned. Hypothetically, an employer who would dismiss a black
employee without any hearing may be perceived to be practising racist
tendencies. The correct facts suggests that when Mr Qomoyi called Mr Meyer a
white racist, it was after a black work er was dismissed in a manner perceived by
Mr Qomoyi to be unfair. Certainly, Mr Qomoyi under those circumstances was
entitled to express his opinion of who Mr Meyer was to him. It may well be so that
Mr Meyer was not a racist, however, what Mr Qomoyi observed on that day, after
being invited to witness it by the self-same Mr Meyer, was an unfair treatment of
a black person by a white person.
[27] Given the history of this Country, it can never be perceived by any reasonable
person that Mr Qomoyi is capable of being a person who believes that a black
race is inherently superior and that a white race is inferior to his race and that he
unfairly discriminated or held prejudice against Mr Meyer because of him being a
white person. When Mr Qomoyi used the words in question, it was his own
interpretation of what he had just witnessed after being called by the self-same
Mr Meyer to witness such. It can har dly be said that in uttering those words he
was insulting or humiliating Mr Meyer based on the colour of his skin. The Court
in Bester discouraged the beginning of the enquiry with the presumption that the
context is neutral. This, because our societal and historical context dictates
otherwise.
[28] Similarly, the inquiry into the usage of the words must not begin from the context
that the usage of the word racist is presumed to be a racist behaviour. As stated
that the usage of the word racist is presumed to be a racist behaviour. As stated
before, within the context of the history and societal context, the usage of the
word racist does not imply that the user used it in a racially charged atmosphere.
The fact that the utterance was accompanied by the phrase, who fires black
workers without a hearing, gives the utterance a specific context. It may well be
13
that Mr Qomoyi considered Mr Meyer as a cruel or unfair white person, who ill-
treats black workers. Given the power relations between Mr Qomoyi – a black
general worker, and Mr Meyer – a white bottling manager, it is inconceivable that
Mr Qomoyi was aiming at devaluing Mr Meyer as a member of the white race. It
seems oxymoronic to contemplate such. History of this country does not bear
that out. Mr Meyer is not a member of the previously disadvantaged group.
[29] It must follow that had Mr Qomoyi not witnessed what Mr Meyer called him to
witness – dismissal of a black employee – he would not have, unexpectedly,
called Mr Meyer a white racist. In truth, it is not far -fetched to surmise that by
calling Mr Qomoyi to witness what he ultimately witnessed, M r Meyer was
provoking Mr Qomoyi . Actually, given his testimony at arbitration as to why he
called Mr Qomoyi , he was being grandiloquent to Mr Qomoyi -to see how I (ek)
treat your people (black employees) . If Mr Qomoyi aimed at displaying racist
behaviour, he could have used the words against Mr Meyer, when he first called
him. It is clear on the correct facts of this matter that Mr Qomoyi was angered by
what he witnessed few minutes later after being summoned to the HR Office. On
the correct facts, no reasonable, objective, and informed person would have
perceived Mr Qomoyi to be displaying racist behaviour towards Mr Meyer. A
reasonable, objective, and informed person, would have perceived Mr Qomoyi as
a person expressing his opinion about Mr Meyer on the strength of what he had
just observed.
[30] The LAC has made it clear, and this was approved by the Constitutional Court,
that before considering any justification by an employee, an employer must first
establish whether a reasonable, objective, and informed person would have on
the correct facts perceived Mr Qomoyi to be displaying racist behaviour. As
stated before, when the commissioner’s arbitration award is considered, he failed
stated before, when the commissioner’s arbitration award is considered, he failed
to conduct the reasonableness test as projected by this Court . First, he labelled
the utterance as a racist tirade without subjecting the utterance to a projected
test. Whereafter, he conducted a detailed examination of the justifications and
rejected them, and made a finding that Mr Qomoyi displayed a racist behaviour.
14
This is at odds with the projected test. On application of the well -known review
test, no reasonable commissioner would fail to conduct the enquiry approved by
the highest Court of the land. Because the commissioner’s arbitration award
failed to meet the constitutional standard, the Labour Court ought to have
reviewed and set it aside.
[31] As found in Bester, the commissioner failed to approach the dispute in an
impartial manner taking into account the totality of the circumstances. He
observably failed to apply the test proposed by this Court and approved by the
Constitutional Court. The touchstone in applying the test must be the usual limits
of social interaction in the circumstances. In Pardo v School District, No 43
7, the
British Columbia Human Rights Tribunal had the following to say:
‘In my view, all the circumstances must be taken into account when considering
whether a single comment constitute a contravention of the Code. Without
suggesting that this is an exhaustive list, some of the relevant factors would be
the egregiousness or virulence of the comment, the nature of the relationship
between the involved parties, the context in which the comment was made,
whether an apology was offered, and whether or not the recipient of the comment
was a member of a group historically discriminated against.’
[32] This approach was approved in Campbell and Abraham v Krizmanich 8. I am in
full agreement with the above approach. Being called out as a racist may be
embarrassing if one is such, however, if one is not, as Mr Meyer professed not to
be, the comment is incapable of being pathogenic or virulence. In this matter, as
stated, the recipient of the comment, Mr Meyer is not a member of a group that
was historically discriminated against. As stated before, historically, a white race
was considered to be a superior race. It could well be that in certain quarters of
South Africa; some white persons still consider themselves to be a superior race.
South Africa; some white persons still consider themselves to be a superior race.
This point was underscored by the Court in Bester . The Constitutional Court
expressed a useful distinction on the usage of racial epithets. It said:
7 2003 BCHRT 71.
8 2009 BCHRT 5
15
‘[53] Gratuitous references to race can be seen in everyday life, and although
such references may indicate a disproportionate focus on race, it may be that not
every reference to race is a product of manife station of racism or evidence of
racist intent that should attract a legal sanction…’
(Own emphasis)
[33] In Chlorchem, the Labour Court expressed itself in the following terms:
‘[12] I have no hesitation to conclude that to accuse a person of being a racist
or to say a person that he is displaying a racist attitude is racially offensive…. I
am also satisfied that such language could be described as “racial”…
(Own emphasis)
[34] This statement of the Labour Court suggests that the mere usage of the words
imply racism or racist tendencies . This statement is at variance with the test
developed by this Court and approved by the Constitutional Court in Bester . The
statement clearly ignores the importance of the context as well as the
circumstances under which the words may be used. As the Constitutional Court
in Bester felicitously puts it , the principles applicable in defamation cases find
application in such an instance. In defamation cases, a fair comment is a
common law defence that protects the honest expression of opinion, even if the
opinion is exaggerated, prejudiced, or harmful to a person’s reputation, as long
as the opinion is based on true or privileged facts and made without malice. As
stated before, calling Mr Meyer a racist was based on the true fact that a black
employee – undoubtedly a member of the previously disadvantaged group - was
dismissed without Mr Qomoyi, as an elected shopsteward, representing him
before being so dismissed. Therefore, his utterance constitutes a fair comment
and cannot be classified as displaying a racist behaviour. I take a view that the
approach in Chlorchem was not approved by th is Court as well as the
Constitutional Court. Consequently, this approach has to be rejected by this
Court.
16
[35] At arbitration, Mr Qomoyi testified as follows:
APPLICANT REPRESENTATIVE… In the video you can see you, the words that
you used there, you were saying Mr Meyer (inaudible) Mr Meyer you are a white
racist (inaudible). So, can you explain why you said that?
MR VUYANI QOMOYI: The reason why I said to Mr Meyer first of all I am a
Shop Steward so each and everything that is happening with the firing of people
at work I am involved. And right now, what is happening if, there is lady now who
has been fired by the (inaudible) she is the (inaudible) she is unemployed. If Mr
Meyer have to fire someone or, or, or with have to go with all procedures of this
person must go to the hearing sits down, he don’t call me as the Shop Steward.
Maybe it, it, it is his part as a Manager, I am not a Manager, and the thing that
now is confusing me is this, he don’t call me even here, no he just wants
(inaudible) with the problem. For an example on this case of Sipho Maimane and
when he don’t call me he will call me when he is firing this person like he did right
now to, to Sipho Maimane and when I start ask him this question like why are
you calling me now when you firing Sipho Maimane but why didn’t you call me,
especially the matter of Sipho Maimane…
MR VUYANI QOMOYI: He don’t call me on that space, so why he call me
when he is firing someone, then that is when he will call me. I don’t know maybe
he want me to feel the pain because I don’t want to see people being
unemployed, sitting there at home, I am not saying people must do wrong at
work, I am not saying must not go to work, you see, but to me as a Shop Steward
that is part of my job to make sure people are doing right things as well and to
make sure that the people are not dismissed unfairly at work. That is my job as a
Shop Steward,
[36] Based on the evidence he tendered at the arbitration, it can never be said that Mr
Qomoyi intended to be racist. Instead, he was venting his frustration in the
Qomoyi intended to be racist. Instead, he was venting his frustration in the
manner which black employees are being dismissed. Putting It otherwise, it was
his response to what offended his own sense of justice and fairness. It cannot be
objectively stated that he used those words seeking to display racist behaviour to
17
Mr Meyer. He was hurt by what was happening to his fellow black employee and
he as the shopsteward appeared to have been unhelpful to their plight.
[37] Allegations of racism are profoundly serious in nature. To my mind, Namaqua
should have installed a full -scale investigation into all the allegations around
racism instead of charging and dismissing Mr Qomoyi for allegedly displaying
racist behaviour. Namaqua should have given the allegation that black
employees are being dismissed without a hearing a little more attention. What
obtained in this matter is not a situation where race supremacy is being displayed
by Mr Qomoyi. The investigation could well have revealed that Mr Meyer was
indeed treating black employees in a manner suggestive of racial oppression.
Allegations of racism were not strange to Namaqua. One of its managers was
sent to diversity training for alleged racist behaviour. This Court approves what
was said by the Human Rights Tribunal in Krizmanich when it said:
‘[37] The evidence in this case is that the parties lost their tempers with each
other and there was an exchange of racial slurs. While this is obviously not
acceptable social conduct, it is a type of conduct that at times does arise in the
heat of the moment and is often later regretted. In my view, although an
exchange of racial slurs is inappropriate conduct and can be hurtful and upsetting
to both parties, it is also a behaviour that is best addressed by an exchange of
apologies. I do not think the purposes of the Code, in particular, to promote a
climate of understanding where all are equal in dignity and rights, is served by
judging racial slur to constitute discrimination contrary to the Code in this type of
circumstance.’
[38] A different approach, other than charging and dismissing Mr Qomoyi , which may
have revealed proper evidence of what actually was taking centre stage at
Namaqua, may have fostered exchange of apologies. Perspicuously , allegations
Namaqua, may have fostered exchange of apologies. Perspicuously , allegations
of racism at Namaqua are not just smokes and mirrors . They seem not to be
illusionary and deceptive. The fact that Mr Meyer professed to not be racist may
not be sufficient as an answer. Racism as an epidemic is not transparent. No
racist person may readily admit to being one. Nevertheless, this Court, on
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application of the Bester test concludes that Mr Qomoyi did not display a racist
behaviour. Thus, his dismissal for reason of displaying a racist behaviour was not
for a fair reason. A reasonable decision maker, taking into account all the
circumstances of this case, would have reached a finding that Mr Qomoyi was
unfairly dismissed. The arbitration award of the commissioner must be set aside.
Was the dismissal of Mr Qomoyi substantively unfair?
[39] Regard being had to the totality of the evidence on record, this Court is in as
good a position as the Labour Court would have been had it correctly reviewed
and set aside the arbitration award. The evidence considered and discussed
above clearly demonstrate that Mr Qomoyi was not guilty of charge two. When
challenged to demonstrate the fairness of a dismissal, an employer may not use
reasons not used in effecting a dismissal to justify the fairness thereof. The fact
that Mr Qomoyi called Mr Meyer a white r acist does not of itself make him guilty
of displaying racist behaviour. The utterance, when viewed in the context it took
place as well as taking into account the history and societal context and
objectively viewed do not amount to raci st behaviour. As already stated, Mr
Meyer is not a member of the previously disadvantaged group. Taking history into
account, Mr Qomoyi is incapable of staking supremacy over Mr Meyer. The
Labour Court , although not permitted, wrongly applied the Bester test to the
circumstances of this case. In that regard, the Labour Court erred and the appeal
must be upheld.
[40] In any event, it is clear from the disciplinary code of Namaqua that the offence in
question is not a dismissible one . For that reason, too, dismissal as a sanction
was inappropriate, which renders the dismissal to be substantively unfair .
Carefully considered, regard being had to the admitted splitting of charges , this
Court states in passing that Mr Qomoyi was punished for his conduct –
Court states in passing that Mr Qomoyi was punished for his conduct –
recommendation of final written warning for insolence – for pointing a finger and
calling Mr Meyer a white racist . Dismissing him for the similar conduct was
inappropriate and unfair . Having concluded that the dismissal is substantively
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unfair, it is not necessary to disturb the finding that the dismissal was
procedurally fair.
The issue of remedy
[41] Mr Boda, appearing for the appellant, correctly submitted that reinstatement is a
primary remedy for substantive unfairness. There is no evidence on record to
oust the ordering of the primary remedy. Mr Qomoyi testified that he wished to be
reinstated and shall not have any difficulties to work with Mr Meyer again. Since
Mr Qomoyi was not supposed to have been dismissed, his reinstatement ought
to be with retrospective effect. The fact that Mr Qomoyi had nevertheless used
the words white racist, would not of itself deprive him of the primary remedy since
he is not guilty of charge two. Accordingly, Namaqua must be ordered to
retrospectively reinstate Mr Qomoyi.
Conclusions
[42] In summary, the commissioner failed to apply the test approved by a higher court,
as such his arbitration award is not one that a reasonable decision maker would
reach. The Labour Court was not permitted to ex post facto augment the
arbitration award by applying the approved test itself, without first setting aside
the arbitration award. The usage of the words white racist in the context and
circumstances of this case does not amount to display of racist behaviour. On
application of the approved test, consideration of the words white racist to be a
racial tirade without more is inappropriate.
[43] In the result, the following order is made:
Order
1. The appeal is upheld.
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2. The entire order of the Labour Court is set aside and is replaced with the
following order:
2.1 The dismissal of Mr Vuyani Qomoyi is substantively unfair.
2.2 Namaqua Wines (Pty) Ltd is ordered to reinstate Mr Vuyani Qomoyi
retrospective from the date of his dismissal.
3. There is no order as to costs.
_____________________
G N Moshoana
Acting Judge of the Labour Appeal Court of South Africa
Nkutha-Nkontwana JA and Tokota AJA concur.
APPEARANCES:
FOR THE APPELLANT : Mr F Boda SC with Ms. Z Ngwenya (Pro bono)
Instructed by: SERI Law Clinic, Cape Town
FOR THE RESPONDENT : Mr RGL Stelzner SC
Instructed by: Vanderspuy, Cape Town
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