In a ground-breaking judgment, the Labour Appeal Court found that calling someone a “white racist” does not, in itself, constitute racism.
The Court ordered Namaqua Wines to reinstate Vuyani Qomoyi, finding that his dismissal in 2021 for allegedly “displaying racist behaviour” was substantively unfair. This is after the Commercial, Stevedoring, Agricultural and Allied Workers Union (CSAAWU), acting on behalf of Qomoyi, appealed the Labour Court judgment which had confirmed his dismissal
Qomoyi, a shop steward, was fired because he had referred to his superior, a Mr Meyer, as a white racist. “Being referred to by one’s racial classification cannot on its own amount to racist tendencies,” Acting Judge GN Moshoana remarked.
Qomoyi, while busy with his duties, was called by Meyer to accompany him to the Human Resources Office. The unsuspecting Qomoyi then heard Meyer firing one of the black workers.
Qomoyi, believing that the dismissal was unfair, raised his objections. During a heated debate over the dismissal, Qomoyi, in a pitched voice, referring to Meyer, uttered the words “you are a racist, stop being a racist you are firing black people”.
The incident was captured on video footage. Qomoyi was subsequently dismissed for displaying racist behaviour. Aggrieved by the fairness of the dismissal, he turned to the CCMA for resolution. The commissioner found the dismissal was both substantively and procedurally fair. The trade union then launched a review application in the Labour Court, which was dismissed.
Judge Moshoana in his recent appeal judgment said based on the evidence at the arbitration, it can never be said that Qomoyi intended to be racist. Instead, he was venting his frustration at the manner in 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 Mr Meyer. He was hurt by what was happening to his fellow black employee and he, as the shop steward, appeared to have been unhelpful to their plight”.
The judge added that Namaqua should have installed a full-scale investigation into all the allegations around racism instead of charging and dismissing Qomoyi for allegedly displaying racist behaviour.
“Namaqua should have given the allegation that black employees are being dismissed without hearing a little more attention. The investigation could well have revealed that Mr Meyer was indeed treating black employees in a manner suggestive of racial oppression”.
The judge also noted that allegations of racism were not uncommon to Namaqua. One of its managers was sent to diversity training for alleged racist behaviour. Noting that both parties lost their tempers during the verbal altercation, Judge Moshoana said: “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”.
The judge added that racism as an epidemic is not transparent. No racist person may readily admit to being one. He concluded the dismissal was unfair and ordered Namaqua to reinstate Qomoyi retrospectively from the date of his dismissal.
The Socio-Economic Rights Institute (Seri) welcomed the judgment as a significant victory for both Qomoyi and the broader labour movement. “The judgment is an important affirmation of the right to free speech and clarifies the standards for determining racism in the workplace,” it said.
zelda.venter@inl.co.za
