In September 2018, the Constitutional Court in Duncanmec (Pty) Ltd v Gaylard N.O. & others (ZACC39) found that the use of the phrase ‘hit the boer’ in the context of a struggle song sung by striking workers did not justify dismissal.
The employer in Duncanmec was faced with an unprotected strike at its workplace. Certain employees sang a struggle song in isiZulu, roughly translated as ‘climb on top of the roof and tell them that my mother is rejoicing when we hit the boer’. Those employees who did not participate in the song received a final written warning for unprotected strike action, whilst those who did participate were dismissed. The employer motivated for the distinction on the basis that the employees had sung ‘racial songs in an offensive manner’.
In dismissal proceedings Commissioner Gaylard of the MEIBC found that whilst the song was inappropriate, it did not amount to racism, and was a struggle song which ‘had a history to it’. Whilst the Commissioner accepted that the song could cause offence to those who heard it, it was not sufficiently serious as to be destructive of the employment relationship. She accordingly found the dismissals to have been unfair and reinstated the employees.
In its earlier decision in SARS v CCMA & others (ZACC38), the Constitutional Court found that the use of racist, derogatory language (in this case the use of the term ‘kaffir’) in the workplace offended the right to equality, amounted to unacceptable hate speech and required employers to take appropriate steps to route it out.The Constitutional Court found that the Commissioner had not acted unreasonably in finding that the song, whilst offensive, did not amount racism and further that even if the song was to be construed as racist, the principles established in SARS v CCMA still required the employer to determine whether the racist utterance was sufficiently serious to warrant dismissal – racist utterances are thus, like any other form of misconduct, a matter of degree.
Whilst the court’s judgment may at first appear to place employers on the horns of a dilemma, we recommend that common sense prevails. Racist conduct which seeks to belittle persons who have historically been the victims of oppression ought properly to be treated more severely than cases where populist rhetoric is used in the context of a strike. Ultimately employers must determine whether they can legitimately contend that the conduct is destructive of the employment relationship.