South Africa has been plagued by decades of racism that has not been significantly addressed since our new constitutional dispensation post 1994. As such, tensions have remained high, rightly so, in situations where racism has been alleged. Unfortunately, there have also been situations where false allegations of racism have been used.
Most recently in the case of NUMSA obo Baloyi and Others v O-Line the Commission for Conciliation, Mediation and Arbitration had to deal with such a situation in the workplace.
The facts of the matter were briefly that Mr. Baloyi and his colleagues were caught by the CEO of their Company playing cards in front of the premises during their tea break.
According to Mr Baloyi and his colleagues the CEO reprimanded, called them idiots and made derogatory racial comments in Afrikaans.
The issue with these allegations were two – fold: Firstly, although Mr Baloyi and his colleagues reported their grievance to representative at NUMSA, the representative never submitted the grievance. Secondly, the allegations of the racial comments surfaced when Mr Baloyi and his colleagues were called to a disciplinary hearing for the conduct regarding the card playing incident.
It appeared that the employees were utilizing the racial comments as a defense against the allegations in the disciplinary hearing. Unfortunately for them, the employer did not believe the allegations of racism and instituted a second disciplinary hearing charging them with supplying incorrect or falsified information against the CEO. Mr. Baloyi and his colleagues were ultimately dismissed.
NUMSA on behalf of the employees proceeded to refer the matter for Arbitration to the Commission for Conciliation, Mediation and Arbitration (CCMA). Here the employees persisted with allegations of racism and derogatory slurs. And, importantly to note, claimed they were made in Afrikaans.
The Employer provided evidence supporting that the allegations were false by the CEO denying and by showing that the CEO did not speak Afrikaans and accordingly would not have uttered comments in Afrikaans.
The Commissioner asked the CEO to read out the comments that were made, he did so with great difficulty.
The Commissioner found that it was telling that the allegations only surfaced when the disciplinary proceedings were instituted. He further found that it was highly probable that the employees were advised by NUMSA that they should only make the allegations in the event disciplinary action was instituted. Which was why the allegations only surfaced on the day of the disciplinary hearing and not at any point before.
This was odd as NUMSA was aware of all avenues that may be utilized in situations similar to these.
Accordingly, the Commissioner found that the employees were guilty of making false statements.
Was Dismissal Fair?
The question as to whether dismissal was an appropriate sanction under the circumstances became the next hurdle to cross.
In circumstances where false allegations of racism are made, is it appropriate for employees to be dismissed?
The Commissioner lamented the impact of racial allegations in today’s society. The allegations were of such a serious nature that if they were proved to be true, it could and would severely impact the perpetrators reputation and may lead to the loss of his employment.
As such their false allegations could have had such a detrimental impact to the reputation of career of the CEO that the dismissal was the only justifiable sanction in the circumstances.
In our ever developing and growing society it is important that allegations of racism are dealt with swiftly and decisively. In the workplace, we need to ensure that allegations of racism are investigated fully and comprehensively. And ultimately, we must realize that just as dismissal is warranted against perpetrators in truthful allegations of racism, it is also warranted against perpetrators of false allegations.
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