In South Africa, racism has been an ongoing problem for many years, and the need to eradicate the phenomenon remains as important an issue as ever. Unfortunately, it sometimes happens that a person may falsely accuse another of racism with the sole purpose of harming that person.
When people decide to “cry wolf” and have proceeded to falsely accuse others of racism, this can lead to serious consequences for the accused person. Furthermore, racism in the workplace is a very serious offence and can simply not be tolerated. It will often lead to a dismissal.
What happens if an employee FALSELY accuses another employee of racism, and how should the employer deal with these allegations of racism in the workplace?
Racism can be defined as “prejudice, discrimination, or antagonism directed against someone of a different race based on the belief that one’s own race is superior”. In short, it means any person of any race can be racist towards any other person of a different race.
In the matter of NUMSA obo Baloyi and Others v O-Line (Case number MEGA 50052) the Commission for Conciliation, Mediation and Arbitration (CCMA) had to deal with such a situation in the workplace. The facts summarised are that the employees were reprimanded by the CEO for playing cards in front of their premises, during their tea break. The employees alleged that the CEO used the F-word whilst reprimanding them. The employees were issued with Notices to attend a disciplinary hearing.
On the morning of the disciplinary hearing, the employees submitted grievances to the HR-Manager and alleged that the CEO called them the K-word and also spoke other insulting Afrikaans words, whilst reprimanding them for playing cards outside the premises. At the disciplinary hearing, the employees were found guilty of insubordination and issued with Final Written Warnings. They were further issued with Notices to attend a disciplinary hearing for making false allegations of racism against the CEO. They were subsequently found guilty and dismissed. The employees with the assistance of their Union NUMSA, referred the dispute to the CCMA.
During the Arbitration at the CCMA, the employees persisted with their allegations in that the CEO called them the K-word as well as other insulting words in Afrikaans. The employer, in turn, acknowledged that he was angry and used the F-word, however strongly denied using the K-word. The CEO further testified that he cannot speak Afrikaans and that he would never address a person in Afrikaans since he is from Zimbabwe and English-speaking. The Commissioner noted “In addition, why would he make it in a language he does not speak while he is angry? The Commissioner also requested the CEO to read the grievance, and he struggled to pronounce ‘kom hierso’. Even the applicants during their own evidence testified that (the CEO) called them by saying ‘come here guys’.”
The Commissioner concluded the CEO had not used the K-word, but the F-word and further that the employer has established that the applicants made false claims against the CEO and that the CEO never called them the K-word. The Commissioner upheld the sanction of dismissal of the employees and noted that “The gravity of the charges were such that it could have caused the end of the CEO’s career and caused severe reputational damage. The reputational damages of the respondent could also have been irreparable.”
A further matter regarding the false claims of racism is the more recent case of Solidarity obo Lieutenant Colonel Annemarie Oosthuizen. The case has not been published yet, as at the date of writing this article, we still await the two members sentencing to be handed down by the North West Regional Court, after they have been found guilty of several criminal charges related to false claims of racism, assault, defeating the ends of justice, perjury and crimen injuria after their former commander laid criminal charges against them.
The facts are summarised as follows, during Lt. Col. Oosthuizen proceeded with disciplinary steps against two junior officers under her command, who had committed a certain misconduct by failing to report for duty and/or failing to apply for leave. The two warrant officers in return opened a case of crimen injuria against Lt. Col.Oosthuizen, alleging that she referred to them by using the K-word. The employees’ union POPCRU, insisted that the SAPD proceed with an internal investigation and hearing against Lt. Col.Oosthuizen. A former intern, Ms Sechele came forward and testified against the two junior officers, refuting the false claims of racism made by the two junior officers.
At the hearing, it was found that Lt. Col.Oosthuizen was not guilty of all charges of misconduct, including the allegation of racism and that the two junior officers, together with their witnesses had blatantly lied under oath.
The SAPS, in return, failed to institute any departmental action against the two junior officers, notwithstanding the above-mentioned finding at the hearing and after a formal grievance was lodged by Lt. Col.Oosthuizen. Solidarity, on behalf of Lt. Col.Oosthuizen, proceeded to refer a labour dispute under the Employment Equity Act to the Labour Court in Johannesburg.
Renate Barnard, a sector coordinator at Solidarity said that “The ruling in the criminal case is not only a victory for Lieutenant Colonel Oosthuizen and Solidarity, but for every person in the public sector who is accused of or incriminated on false charges of racism.”
In the matter of South African Commercial, Catering and Allied Workers Union obo Mpisane / Grandwest Casino and Entertainment World – (2020) 29 CCMA 8.37.12 also reported at [2020] 7 BALR 776 (CCMA), an employee was dismissed for telling a customer not to disturb her and also referring to a colleague as being a “baboon” after the customer had accused her of stealing his money. The applicant denied these allegations and claimed that her dismissal was unfair and subsequently referred the dispute to the CCMA.
The Commissioner found that the videotaped evidence provided by the employer showed that the guest had used the word “baboon” with reference to one of the employee’s colleagues who had been called to assist her with a machine after the employee referred to him (the customer) as a baboon in a comment to the colleague.
The Commissioner found that the employee had used the word deliberately, further that the racist element of her comment “baboon” should be disregarded, just because the employee had been charged with “insolence”. Cases in which employees had not been dismissed after being found guilty of insolence were, therefore, not comparable. The Commissioner further noted that use of the word “baboon” is equally offensive when used by black and white people alike, as it implies that the person referred to is inferior or sub-human. The Commissioner held that all employers are entitled to take strict action against employees who use racist expressions, regardless of the context. The dismissal was, accordingly, upheld as it was found to be substantively fair.
In conclusion, it should be noted by employers that false accusations of racism against fellow employees in the workplace, amounts to serious misconduct and may most likely lead to dismissal. Such allegations have detrimental consequences not only emotionally, but also regarding the accused employee’s future career. The people who abuse the system by laying false claims of racism, should be held to the same disciplinary actions and sanction than those who make themselves guilty of racism in the workplace.
Employers should be careful when proceeding with disciplinary steps regarding allegations of racism in the workplace and should proceed to investigate the allegations thoroughly before proceeding with disciplinary steps. Once an employee has been dismissed for false claims of racism in the workplace, that employee’s reputation and the possibility of future employment has been tarnished. Investigate thoroughly, use all possible recourses available such as video, polygraph testing, witnesses etc. in building your case, before proceeding with disciplinary steps.