Prove allegations of racism

The facts

Booysen, a beer truck driver, alleged that a regional risk manager (Hansen) used racist language when swearing at him.

The employer (SAB) convened a disciplinary hearing where a witness supported Booysen’s version. Hansen was found guilty and dismissed. Hansen challenged the dismissal and the arbitrator was not persuaded that the driver’s version was the truth or that his corroborating witness actually heard what was said. Hansen was reinstated and SAB took the matter on review

The judgment

In the matter of S A Breweries (Pty) Ltd v Hansen & others [2016] 5 BLLR 516 (LC) per Steenkamp J, the court confirmed the manager’s reinstatement:

‘[27] It is so that the arbitrator referred to the appeal chairperson’s finding with regard to Booysen’s credibility. But the award and the evidence at arbitration must be regarded holistically. She formed her own view of the probabilities on the evidence before her. And she also found Booysen not be a credible witness, but for reasons other than those mentioned by the appeal chairperson. That is not a finding that a court on review is likely to interfere with.

[28] As to Scullard’s testimony, although the appeal chairperson disregarded it, the arbitrator did have regard to it in the arbitration, which is a hearing de novo. She considered Hansen’s undisputed evidence that he had instructed Scullard to find an alternative driver to take the truck off the premises. It is common cause that Scullard was not a witness to the incident. And she pointed out that Scullard testified that Hansen complained that Booysen had sworn at him; yet Booysen made no mention of Hansen’s alleged racist insult.’

The importance of this judgment

Racist utterances constitute serious misconduct at the workplace.

Unless there is reliable proof of such alleged racist utterances, employers should be slow to dismiss.

Employees who successfully challenge dismissal for racism may seek reinstatement. If the dismissal is overturned, the employer faces a different dilemma:   What steps, if any, should be taken against the employee for having fabricated allegations of racism?

Written by Hilda Grobler