The Labour Appeal Court recently reminded us that the test that applies to the determination of whether calling a person by a derogatory or abusive name or term is an objective one.
In SAEWA obo Bester v Rustenburg Platinum Mine and Another  ZALAC 23 the question the Labour Appeal Court was required to decide was whether referring to another employee as a "swartman" was a racist remark for which Mr Bester should have been dismissed.
Mr Bester was dismissed on the grounds of insubordination, and for making certain racial remarks. The incident arose out of a dispute relating to a parking bay.
Two weeks before the incident, Mr Bester had found a large 4X4 vehicle, similar in size to his own, parked in the parking bay adjacent to the one that Mr Sedumedi, as a favour, had allocated to him. Though reverse parking in so limited a space was not impossible, it was certainly difficult, and Mr Bester feared that scratches and bumps would result. He, therefore, decided to take the matter up with Mr Sedumedi in an effort to arrange for the vehicle to be parked in one of the other available bays. Mr Bester made repeated efforts to raise the issue with Mr Sedumedi, which included phoning him several times only to have the phone slammed down on him.
On 17 April 2013, Mr Bester took photographs of the two parking spaces. Mr Sedumedi saw Mr Bester do this, but when Mr Bester tried to approach Mr Sedumedi to speak to him about his parking difficulty, Mr Sedumedi brushed him off. Mr Bester then sent an e-mail to Mr Sedumedi to which he attached the photographs. In the covering note to the e-mail, he wrote: "you don't want to talk to me so I think I must take this [matter] a little bit further". However, Mr Sedumedi regarded the message as "valueless" and chose neither to open the attachment to the e-mail nor reply to it. One Charles Cantor discussed the problem with Mr Sedumedi at Mr Bester's request, but Mr Sedumedi still refused to speak to Mr Bester about it. He instead instructed Mr Tlhomelang, the owner of the vehicle, to take no notice of Mr Bester's concerns and to continue parking his vehicle in the parking bay.
On the morning of 24 April 2013, Mr Bester walked into Mr Sedumedi's office and an altercation ensued. What was said and by whom was in dispute. The end result was that Mr Bester was charged with two acts of misconduct: insubordination and making racial remarks by using the word "swartman" to refer to a fellow employee when he requested that he move his vehicle.
The context of the word was as follows. During the discussion about the parking bay, Mr Sedumedi said, "jy wil nie langs 'n swartman stop nie... dit is jou problem". Mr Bester asked Mr Sedumedi "not to turn this into a racial issue". Subsequent to this, Bester stormed into a meeting, pointed his finger at Mr Sedumedi and said, in a loud and aggressive manner, that Mr Sedumedi must "verwyder daar die swartman se voertuig" (from the parking bay). It emerged that Mr Bester did not know the name of the man who parked next to him at the time, and that the man in question did not take offence at being identified as a "swartman".
Mr Bester referred an unfair dismissal dispute to the CCMA. The Commissioner found the decision of the chairperson of the disciplinary hearing as "far-fetched and nonsensical". Mr Bester's dismissal was found to be substantively and procedurally unfair. And RPM was ordered to reinstate Mr Bester with retrospective effect.
RPM took the award on review, and was successful in their application. Mr Bester then appealed against that decision to the Labour Appeal Court. The Labour Appeal Court found that the use of the term "Swartman" in the context of this case was not racist or derogatory. The Labour Appeal Court had the following to say about dealing with seemingly racist or demeaning comments.
"It is close on two decades since the dismantling of the apartheid regime, yet racism remains a key challenge to our democracy. Racism is particularly pervasive in the workplace, where concerned employers have adopted a zero-tolerance approach to racist conduct and the use of racial expressions or epithets which are derogatory by making such misconduct a dismissible offence. Our courts have correspondingly dealt with acts of racism, and the use of racist language in particular, very firmly visiting upon such conduct the sanction of dismissal.
Although I am mindful that racist conduct in the workplace is a serious offence and 'an anathema to sound industrial relations' warranting the sanction of dismissal, it is important to bear in mind the gravity of a judicial finding of racism which will surely reverberate for many years after the incident with potentially long term consequences for all concerned. Consequently, before making such a finding against an employee accused of racist conduct in the workplace, the court must carefully scrutinise, against the totality of the evidence presented, whether on a balance of probabilities the employee is guilty of such conduct. Where certain denials and versions advanced in support of an ill-considered defence strategy are subsequently found to be mendacious as is the case here, that alone should not be the determining factor in relation to the question of the guilt or otherwise of that employee. In dealing with this question, the task of the court is to decide whether on the assessment of the evidence as a whole, the probabilities and the inferences that the employer has discharged the onus of proof on a balance of probabilities.
In determining whether the word 'swartman' is derogatory on the objective test, the use of the word must be looked at in the context in which it was made. It is clear from the judgment that the Labour Court implicitly recognised that the word 'swartman' is neutral on the face of it, and would require context if it were to acquire a 'pejorative' meaning. For instance, and as pointed out in argument on behalf of Bester, the term 'black man', if used by a black person to refer to another black person, would not lose its neutrality: for example, 'the unidentified person who called yesterday was a black man'. However, when the word loses the neutrality, it can be pejorative. But it can equally be laudatory: for example, a bumper sticker of the by no means distant past proclaimed: ''I thank God I am a black man, Amen'. Context is, therefore, decisive to the neutrality or otherwise of the term 'black man'.
The Labour Court was, indeed, constrained to consider context in determining whether the expression 'swartman' as used by Bester, in his exchange with Mr Sedumedi, was derogatory. On the objective test, this meant that the Labour Court had to examine the entire context in which the misconduct is alleged to have occurred and the effect thereof. The context of course had to disclose, as the only reasonable inference from the proven facts, that the word 'swartman' was derogatory and racist, and that Bester had acted with intent to demean. Only then could the Labour Court upset the decision of the Commissioner, which was that no intent to demean had been proven."
The Labour Appeal Court then found that the real issue was whether Mr Bester's use of the descriptor "black man" to identify the owner of the vehicle parked in the bay next to his was derogatory. It found on the facts that it was not. A timely reminder that within the context of the law, context is everything.
Frahm-Arp is a Director, Labour, Employment and Human Rights Practice Group, in Fasken Martineau (South Africa).