Man who called a colleague a 'swart man' should lose his job: Con Court

The Constitutional Court on Thursday ruled that a white employee who referred to a black colleague as the “swart man” during a conflict over a parking space with a black colleague should lose his job.

The court upheld an appeal by an employer over the dismissal of Meyer Bester‚ who lost his job in May 2013 following an incident during which he stormed into a meeting at his workplace at Thembelani mine in Rustenburg.

Bester had not been happy with the fact that a parking spot next to his had been given to fellow employee Solly Tlhomelang by safety officer Ben Sedumedi.

On April 26 that year‚ Bester stormed into a safety meeting chaired by Sedumedi and said in a loud and aggressive manner that Sedumedi must “verwyder daardie swart man se voertuig” (remove that black man’s vehicle).

Bester was dismissed following a disciplinary hearing for misconduct and making racial remarks – but he approached the Commission for Conciliation‚ Mediation and Arbitration (CCMA) and‚ in December 2013‚ the commission found that Bester’s dismissal was both substantively as well as procedurally unfair.

Bester was reinstated and back-paid R191 843.21.

The mine was not happy with the decision and approached the Labour Court‚ which in 2016 found that the use of the phrase “swart man”‚ within the context of this case‚ was derogatory and racist and warranted Bester’s dismissal.

Bester’s union‚ the South African Equity Workers Association appealed to the Labour Appeal Court‚ which in May last year found in Bester’s favour.

The Labour Appeal Court found that Bester could have said “swart man” as a way to describe the driver of the other vehicle.

The mine was not happy with that ruling‚ appealed to the Constitutional Court.

In a unanimous judgment‚ Justice Leona Theron disagreed with the Labour Appeal Court.

Theron said the correct test was whether a reasonable person would‚ on the correct facts‚ perceive “swart man” to be racist and defamatory. She said the Labour Appeal Court’s starting point‚ that the phrase was “presumptively neutral”‚ failed to recognise the impact of apartheid and racial segregation that had left the country with a racially charged present.

She said the Labour Appeal Court‚ as well as the commissioner of the CCMA‚ failed to approach the dispute in an impartial manner taking into account the “totality of circumstances”.

“Not only was ‘swart man’ as used here racially loaded‚ and hence derogatorily subordinating‚ but it was unreasonable to conclude otherwise. It was unreasonable for the commissioner‚ within this context‚ to find that using ‘swart man’ was racially innocuous‚” Theron said.

She added that dismissing Bester was the correct sanction as he had not shown remorse for what he said.