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IN THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

CASE NO: J1399/2005

In the matter between:

SOUTH AFRICAN CHEMICAL WORKERS

UNION First Applicant

ZACHARIA TSAGANE Second Applicant

and

NCP CHLORCHEM (PTY) LTD First Respondent

MOTLATJO RALEFATANE N.O. Second Respondent

BARGAINING COUNCIL FOR THE

CHEMICAL INDUSTRY Third Respondent

JUDGMENT

NEL AJ:

[1] This is an application to review and set aside the award by the second respondent ("the Commissioner") under case number GPCHEM1264 and dated 8 July 2005.

[2] The circumstances which gave rise to the dismissal of the second applicant ("Tsagane") are briefly summarised. A team meeting was held on the morning of 18 November 2004 at the workplace of the first respondent ("the employer") to discuss the daily and personal objectives of that particular team. This meeting was attended by team members including a Mr Coertse, (“Coertse”) the team leader, and by Mr Potgieter ("Potgieter") and Tsagane. Concerns over Tsagane's performance in completing tasks allocated to him were raised by Potgieter. Tsagane responded by accusing Potgieter of talking behind his back to another employee about his alleged poor performance. Potgieter denied this allegation and when he attempted to engage Tsagane on this, Tsagane told him to keep quiet. As Potgieter was unhappy about what he contended were false allegations by Tsagane, and the conduct towards him during the meeting, he approached Coertse for assistance and advice. Coertse advised Potgieter to convene a meeting the next day, 19 November 2004. During this meeting on 19 November 2004, Potgieter denied having spoken to another employee about Tsagane's poor performance and Coertse asked Tsagane to apologise to Potgieter. Tsagane refused to do so and accused Potgieter of being a racist and that he demonstrated a racist attitude. Tsagane said that he was going to report the matter to his union and that he would demand Potgieter's dismissal. As the matter was not resolved, a grievance hearing was held on 30 November 2004 after Potgieter had lodged a formal grievance against Tsagane. Tsagane was represented by a trade union representative, a Mr Samela, the general secretary of the first applicant (“SACWU”). During the grievance hearing, Samela instructed Tsagane to apologise to Potgieter. Tsagane then did so. Samela told Potgieter that he should accept the apology because if he did not, Samela was going to take up the matter with Potgieter's union, Solidarity, and that the relationship of SACWU and Solidarity could be affected. Potgieter felt threatened by Samela and refused to accept Tsagane's apology. The matter remained unresolved and disciplinary action was taken against Tsagane. He was found guilty of "insulting, abusive, obscene or racial language, communication or behaviour" in terms of Clause 6.1.2 of the Employer's Code of Conduct. Tsagane and his union, SACWU, referred an unfair dismissal dispute to the third respondent. The dispute was arbitrated and the Commissioner found Tsagane's dismissal to have been fair. It is apparent from the Commissioner's award that he concluded that it was "common cause that (Tsagane) said Pottie Potgieter demonstrated a racist attitude and that he was racist". In the heads of argument filed on behalf of the applicant, and in argument before me on behalf of the applicant, it was conceded that Tsagane had said to Potgieter that he, Potgieter, demonstrated a racist attitude, but it was denied that Tsagane had specifically called Potgieter a racist.

[3] Tsagane, in his founding affidavit in support of the review application, stated with reference to the meeting on 19 November 2004 that:

"In this meeting, I was again inflamed by Potgieter's actions and conduct toward me and I repeated my belief that he was a racist and again said I would take the matter up with my union and that we would demand his dismissal".

[4] A perusal of the evidence adduced before the Commissioner discloses that Potgieter expressly testified that Tsagane at the meeting had said that he had a racist attitude and that he had accused him of being a racist. I could also nowhere find that the applicant had taken issue with the Arbitrator's statement quoted above, namely that Tsagane had said that Potgieter had demonstrated a racist attitude and that he was racist.

[5] The next relevant aspect to deal with is that the Commissioner in his award continued by stating that:

"(The employer) said that (Tsagane) further said that he would use his powers within SACWU to remove Pottie Potgieter from his position. (Tsagane) stated that, that was not what he said. He said that he told Pottie Potgieter that he was going to report the matter to his union".

[6] In the first instance the record reflects that Coertse had testified before the Commissioner that Tsagane had said that Potgieter is making him very angry and had forced him to take action and that his people would stand behind him until Potgieter was gone. Coertse's evidence was also that Samela had told Potgieter that his decision (whether to accept Tsagane's apology) could influence the relationship between Solidarity Union and SACWU and that Potgieter's decision could have consequences for Potgieter.

[7] Potgieter testified that Tsagane had said that he would ensure that he talked to his members so that they can toyi-toyi in front of the company or in front of the training centre to get Potgieter removed out of his position. Under cross-examination Potgieter said that Tsagane had told him that he was a racist and that he would get rid of him.

[8] It is significant that from the Commissioner's award, which I referred to earlier herein, it is quite apparent that Tsagane had denied before the Commissioner that he would have Potgieter dismissed. Having regard to what Tsagane stated in his founding affidavit, which I also referred to earlier, it is apparent that Potgieter's evidence to the effect that Tsagane had on 19 November 2005 said that he would get rid of Potgieter could have been accepted by the Commissioner. The Commissioner apparently approached the matter cautiously as he apparently considered the matter on the basis of Tsagane's evidence. His award reads as follows:

"I believe that Pottie Potgieter was threatened by (Tsagane's) statement to the effect that he would report the matter to his union. (Tsagane) did not explain why he was going to report the matter to the union, but Pottie Potgieter felt threatened. It is not in the spirit of harmony that employees should threaten others".

[9] I am of the view that the Commissioner's conclusion must be considered against the following facts which were either common cause at the time of the arbitration or is now, particularly having regard to Tsagane's founding affidavit, to be accepted as the prevailing facts and circumstances. I am accordingly going to proceed to consider the Commissioner's award on the basis that Tsagane did on 19 November accuse Potgieter of having demonstrated a racist attitude and that he was a racist. Tsegane had further said to Potgieter words to the effect that he would take the matter up with his union and that he would demand Potgieter's dismissal.

[10] If I understood the argument by Ms Edmonds, who appeared before me on behalf of the applicant correctly, it was to the effect that to advise someone that he was demonstrating a racist attitude could not be construed as using "racist words". "Racist" is defined in the New Shorter Oxford English Dictionary as "a person believing in, advocating, or practising racism". "Racism" in turn is in the same dictionary defined as "belief in, adherence to, or advocacy of the theory that all members of each race possess characteristics, abilities, qualities, etc., specific to that race, especially distinguishing it as inferior or superior to another race or races; prejudice, discrimination, or antagonism based on this".

[11] The HAT "Verklarende Handwoordeboek Van Die Afrikaanse Taal" defines "rassis" as "iemand wat die rassisme aanhang, daaraan glo". "Rassisme" is in turn defined as "veronderstelling dat karakter en bekwaamheid bepaal word deur ras – ‘n denkrigting wat aanneem dat ‘n besonderde ras meerderwaardig is en die reg het om ander rasse te oorheers”.

[12] I have no hesitation to conclude that to accuse a person of being a racist or to say to a person that he is displaying a racist attitude is racially offensive. I am equally satisfied that these words, objectively viewed, can be regarded as insulting and abusive. I am also satisfied that such language could be described as “racial”.

[13] I can hardly conceive of any place or circumstance or country where, if a person is told that he is racist, it will not be experienced by such person as him or her being insulted and abused. Therefor, in our country with its history of racial discrimination, it need hardly be debated, I believe, that employers, generally speaking, are enjoined to do their best to create a working environment free from racism. Apart from employers being statutorily obliged to do so, it is patently the right thing to do. The Commissioner commented that “the employer is trying to make the employees respect each other irrespective of colour and that must be appreciated”

[14] The applicants contended that the Commissioner failed to state in his award what racial words were actually used and it contended that the reason for this failure is that Tsagane used no such words. This proposition is without merit. It is apparent that the Commissioner considered whether there may have existed any justification for Tsagane’s conduct by reason of provocation, as claimed by him. Having assessed the conduct of Potgieter, as well as that of Tsagane, I believe the Commissioner’s conclusion to reject the existence of provocation to be justified, having regard to the evidence and material placed before him.

[15] As part of the Commissioner’s reasoning leading to his rejection of the contention by Tsagane that he was provoked, the Commissioner held that Tsagane was in fact the one who was disrespectful towards his fellow-colleague Potgieter by telling him to “shut up”. I could not find support for this contention in the evidence. Potgieter’s own evidence was to the effect that he was told by Tsagane to keep quiet. Depending on the circumstances under which a person tells another to keep quiet, it may be disrespectful. However, on the face of it, asking a person to keep quiet is not in and by itself disrespectful. To tell a person to “shut up” is different to asking that person to be quiet. However, this incorrect reason used by the Commissioner for his conclusion of disrespect does not in my view amount to a sufficient misdirection leading to the finding that his conclusion was not justified. Sight cannot be lost of the fact that the incident at which Tsagane told Potgieter to keep quiet was what caused Potgieter to call for the meeting on 19 November 2005. The manner in which Tsagane acted obviously left Potgieter feeling that he needed to complain and this in turn led to the informal grievance hearing. In this regard I am of the view that the Commissioner cannot be faulted for his conclusion that at the time of the grievance meeting, there was nothing said that could have been construed as disrespect by Potgieter for or to Tsagane. Having accordingly considered the reason for the Commissioner rejecting the claim of provocation at the grievance meeting, I am satisfied that the Commissioner was justified in arriving at this conclusion.

[16] It was further alleged that the employer was inconsistent in the application of the sanction imposed because previously similar racial incidents were resolved through one party tendering an apology. It was accordingly contended on behalf of Tsagane that in terms of the so-called “parity principle” after Tsagane had offered his apology, the matter should have been resolved and Tsagane should not have been charged and found guilty by the employer. It was accordingly contended that the Commissioner should have found that the dismissal of Tsagane was unfair as a result of the inconsistent application of discipline by the employer. The Commissioner clearly distinguished these other incidents from the one before him. He indicated in his award that all these incidents were handled and that it was apparent that the people involved therein were willing to resolve the issues. He, however, concluded that in the matter before him Tsagane had been disrespectful towards Potgieter on two or three different days. This he concluded meant that Tsagane knew what he was doing. He further reasoned that his conclusion that Tsagane knew what he was doing was supported by the fact that he was not willing to resolve the dispute and did not even show remorse. The Commissioner’s aforementioned conclusions are all attacked by the applicants. They contend that there was no justification for the Commissioner’s conclusion that Tsagane was disrespectful or for his conclusion that he was not willing to resolve the dispute and did not even show remorse.

[17] Having regard to the evidence before the Commissioner, I in the first instance am satisfied that the Commissioner was justified in concluding that Tsagane was disrespectful to Potgieter. It must be remembered that Potgieter testified that Tsagane’s conduct at the first meeting during which he attacked Potgieter for allegedly having discussed him with another employee and had told Potgieter to remain quiet was what led to Potgieter feeling aggrieved and the second meeting being convened. At the second meeting the evidence discloses that Tsagane refused to apologise to Potgieter (obviously in respect of his conduct earlier) and then proceeded to accuse him of displaying a racist attitude and being a racist. This clearly showed an unwillingness to resolve the dispute. This unwillingness in turn led to Potgieter filing a formal grievance. It would appear that at the formal grievance Tsagane had to be instructed or ordered by his union representative to apologise to Potgieter, which he then did.

[18] As far as the Commissioner’s conclusion that Tsagane was not willing to show remorse, an inherent part of remorse is an admission by a party of wrongdoing. I do not believe there is a shred of evidence anywhere to be found, not in the record of the arbitration proceedings nor in Tsagane’s affidavits before this Court, which indicates any admission of wrongdoing. On the contrary he, through his legal representatives, to this day contends that to call somebody a racist or that he displayed a racist attitude is not a racial comment and it does not constitute insulting, abusive, obscene or racial language which is what Tsagane was accused of in terms of the employer’s code of conduct.

[19] I am in this regard accordingly also satisfied that having regard to the reasons given by the Commissioner and the evidence before him, he was perfectly justified in concluding that Tsagane was not willing to resolve the dispute and that he did not show any remorse.

[20] I am also further satisfied that the Commissioner was justified in distinguishing the matter under consideration before him from all the other incidents he was referred to. He was in the first instance justified in concluding that in these other matters the parties involved were willing to resolve the matter. Sight can obviously not be lost of the fact that in the matter before the Commissioner the evidence by Potgieter was that Tsagane’s union representative had threatened him by saying that he must think carefully about his decision (whether to accept the apology) because that would have implications for the relationship between SACWU and Solidarity. He said that because of this threat he did not accept the apology. Accordingly the matter is clearly distinguishable from the others where in each instances, as the Commissioner concluded, the parties were willing to resolve the issues.

[21] In addition I am also satisfied that the Commissioner approached the evidence relating to other incidents correctly. He stated that “Other incidents referred to by (Tsagane’s) witnesses cannot make the wrongs that were committed right. I do not see a way in which I can decide that (Tsagane’s) dismissal was unfair on the basis that other employees who insulted others were not dismissed. Pottie Potgieter did nothing by either conduct or word that could have been construed as a demonstration of a racist attitude or that he was a racist. These words were not warranted”.

[22] It is an accepted principle that what ought to be determined is really whether an employer, in dismissing an employee, acted capriciously, or induced by improper motives or by a discriminating management policy. (See SACCAWU & Others v Irvin & Johnson Ltd [1999] 8 BLLR 741 (LAC) at 751D) Not only am I satisfied that the Commissioner herein properly considered the allegation of inconsistent treatment of Tsagane, but that he was justified in his conclusion having regard to the reasons given and the evidence before him.

[23] It was further argued on behalf of the applicant that the Commissioner was not justified in concluding that Potgieter was threatened by Tsagane’s statement to the effect that he would report the matter to the union. It was contended that it clearly is the right of Tsagane to report to the union and that it was also his duty as a shop steward to make such report when it was necessary.

[24] As I said at the outset, it is apparent that Tsagane disputed before the Commissioner that he had said that he would use his powers within SACWU to remove Potgieter from his position.

[25] I believe the Commissioner dealt properly with this dispute of fact and that he was justified in drawing a negative inference from the fact that Tsagane did not explain why he was going to report the matter to the union.

[26] An analysis of Tsagane’s statement in his founding affidavit drives me to conclude that as he believed that Potgieter was a racist he was going to report this to his union and demand his dismissal. Clearly if an employee has conducted himself in a manner which may justify the allegation by another employee or employees that he is a racist or is displaying a racist attitude, then such allegation needs to be properly made to the employer and these allegations need to be investigated, if necessary through the institution of disciplinary action. Reporting such allegations of alleged racist conduct to one’s union in order to seek its support to secure the dismissal of the allegedly racist employee may also be justified. Patently clearly one needs to be able to accuse a person of being a racist or displaying a racist attitude without fear that making such allegations may lead to one’s dismissal. Equally clearly, if you make such allegations that a fellow employee is a racist or is displaying racist attitudes and you make them without justification or reasonable cause therefore, you must accept that this will most likely lead to disciplinary action being instituted against you. Equally it should be clear to any employee who makes unfounded allegations against a fellow employee that he or she is racist or that he or she is displaying a racist attitude, that this will in most instances, in my view, amount to serious misconduct which may lead to that employee’s dismissal.

[27] Racial harmony in the workplace must be of paramount importance to each and every employer and employee alike. Just as racist behaviour needs to be rooted out, allowing employees to willy-nilly accuse fellow employees of being a racist or displaying racist attitudes, must be addressed with equal fervour by employers if such allegations are baseless and made without reasonable cause therefore. Clearly to allow such allegations to be made without there being a proper and reasonable basis therefor will be equally destructive to racial harmony in the workplace.

[28] It is trite that every case must be judged based on the facts thereof. Therefore it is wholly relevant to have had regard to Tsagane’s conduct at the first meeting during which he accused Potgieter of having discussed him with another employee and also told Potgieter to keep quiet. Then followed what I will refer to as an informal grievance meeting at which Tsagane refused to apologise for his behaviour earlier but then compounded matters by accusing Potgieter of being a racist and displaying racist attitudes. The Commissioner concluded, correctly so in my view, that Potgieter had done nothing by either his conduct or through what he had said that could have been construed as a demonstration of having a racist attitude or that he was a racist. Accordingly it follows that there was no justification for Tsagane to have accused Potgieter of demonstrating a racist attitude or that he was a racist. The Commissioner therefore correctly concluded that these words by Tsagane were not warranted.

[29] The applicant in conclusion complained that the Arbitrator failed to conduct a proper enquiry as he failed to determine whether the employer could reasonably be expected to continue to employee the offending employee.

[30] The Supreme Court of Appeal has once again confirmed that Commissioners should use their powers to intervene with sanctions imposed by employers with caution and that they must afford the sanction imposed by the employer a measure of deference. (See Rustenberg Platinum Mines Ltd (Rustenberg Section) v CCMA & Others [2006] 11 BLLR 1021 (SCA) at 1038 [42])

[31] This Court is of the view that if an employee, without reasonable cause therefor, accuses a fellow employee of being a racist or of displaying a racist attitude, it will constitute a very serious form of misconduct. One can hardly think of many, if any circumstances under which an employee who has been found guilty of being a racist or displaying racist attitudes to fellow employees will avoid being dismissed. This is likely to be so as one can hardly imagine that any employer could reasonably be expected to continue to employ such offending employee in the workplace. It is likely to cause racial disharmony. I believe it is similarly difficult to imagine under what circumstances an employee who without just cause or a reasonable basis therefor, and accordingly unjustifiably, accuses another employee of being a racist, or that he or she was displaying a racist attitude, would easily escape dismissal. Such conduct strikes at the heart of racial harmony. It cannot be emphasised enough that to accuse somebody of being a racist, or of displaying racist attitudes, is to be regarded as a very serious allegation. The defamation of a party is a very serious attack on that party’s person. Such attack, if launched, must only be done based on reasonable grounds. The same applies to accusing somebody of being a racist or of having racist attitudes. If you launch such an attack in an unwarranted or baseless manner, it should result in serious consequences for the perpetrator. This would, I believe, generally be the case and more particularly if this happens in the workplace.

[32] Having regard to the reasons given by the Commissioner, I am satisfied that he was perfectly justified in arriving at his conclusion which was in effect that the dismissal of the second applicant herein was procedurally and substantively fair. There is, accordingly, in my view, no basis for this Court to interfere with the award of the second respondent.

[33] It follows that the application herein falls to be dismissed and that the first and second applicant should be ordered to pay the first respondent’s costs of suit. I accordingly make the following order:

1. The application is dismissed.

2. The first and second applicants are ordered to pay the first respondent’s costs of suit.

DEON NEL

Acting Judge of the Labour Court

DATE OF HEARING: 29 September 2006

DATE OF JUDGMENT:

Appearances:

For the Applicants: Ms Ruth Edmonds of Ruth Edmonds Attorney.

For the First Respondent: Advocate Jammy.

Instructed by Bell Dewar & Hall

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