CONSTITUTIONAL COMMENTARY AND EVENTS

In May 2013, Rustenburg Platinum Mine (the mine) dismissed an employee, Mr Bester, on grounds of insubordination and the making of racial remarks. Briefly, the facts of the case are that, after a parking issue he tried to raise was ignored, Mr Bester interrupted a meeting where he referred to the owner of the vehicle concerned, as a “swart man” (black man), and in so-doing, contravened a workplace rule that prohibited the use of abusive and derogatory language at the mine. Bester was later charged with insubordination for interrupting the meeting, and with making racial remarks against a fellow employee. Following suspension and a disciplinary hearing, Bester was dismissed.

He approached the Commission for Conciliation, Mediation and Arbitration (CCMA) on the grounds of an allegedly unfair dismissal because he claimed he had not uttered the words. The CCMA held that the use of the term was racially innocuous because it had been used to identify someone whom he did not know by name. The CCMA held that ‘swart man’ had been used to describe a physical attribute and therefore, the dismissal was both procedurally and substantively unfair.