In a unanimous judgment delivered by the Chief Justice Mogoeng, the Constitutional Court reinforced the founding values of our Constitution, which is built on human dignity and the achievement of a non-racial South Africa. This judgment sends a clear message to all employers and employees that racism will not and cannot be condoned in the workplace.
The matter was heard on appeal from the Labour Appeal Court (LAC) and concerned the dismissal of a South African Revenue Service (SARS) employee in 2007 after a dispute where he referred to his senior colleague as a “k****r” and stated that “a k****r must not tell me what to do”. In terms of a collective agreement between SARS and the unions, SARS conducted a disciplinary hearing and the employee pleaded guilty to the use of abusive and derogatory language towards his senior. The sanction imposed by the independent Chairperson, which was agreed to by all parties at the disciplinary hearing, was a final written warning valid for six months, as well as suspension without pay for 10 days. The employee was also directed to undergo counselling. The SARS Commissioner (the Commissioner) unilaterally changed the final written warning to a dismissal, without affording the employee the opportunity to make representations and effectively going against a sanction approved by the SARS representative who attended the disciplinary hearing. The aggrieved employee referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) on the ground of unfair dismissal.