The Labour Appeal Court (LAC) has found calling someone a “white racist” does not, in itself, constitute racism.
In a judgment passed on Wednesday, the court ordered Namaqua Wines to reinstate Vuyani Qomoyi, finding his dismissal in 2021 for allegedly “displaying racist behaviour” was substantively unfair.
Central to the appeal lay the question whether calling out someone as a racist made the caller a racist or that the caller displayed racist tendencies.
In the present appeal Qomoyi, who was a general worker and a shop steward, was dismissed because he had referred to a manager, Albrie Meyer, as a white racist.
Meyer had summoned Qomoyi in August 2021 to witness a colleague’s dismissal. No explanation was given as to why Qomoyi was required to witness the dismissal, nor was this common practice.
When Qomoyi questioned the process and was refused answers, he protested, expressing concern about fairness and representation.
In the process of a heated debate over the dismissal of Qomoyi’s colleague, Qomoyi, in a pitched voice, referring to Meyer, uttered words to the following effect: “You are a racist. Stop being a racist. You are firing black people”.
Qomoyi was suspended and later hauled before a disciplinary hearing chaired by an external attorney. He was charged with gross insubordination in that he pointed a finger at his manager and called him a “white racist”. He was also charged with displaying racist behaviour and refusal of a lawful order.
The appointed chairperson found Qomoyi not guilty of gross insubordination but insolence. However, the chairperson found Qomoyi guilty of displaying racist behaviour and recommended he be dismissed. He was dismissed in October 2021.
Aggrieved by the decision, Qomoyi approached the Commission for Conciliation, Mediation and Arbitration (CCMA). In its award, the CCMA found the dismissal of Qomoyi was substantively and procedurally fair.
The Labour Court upheld Qomoyi’s dismissal and ordered punitive costs against the farm workers’ union, the Commercial, Stevedoring, Agricultural and Allied Workers Union (CSAAWU) in 2024.
However on Wednesday, the LAC overturned the Labour Court’s decision in its entirety. The LAC found the CCMA and the Labour Court were incorrect that Qomoyi’s utterance constituted racist behaviour because they failed to approach the dispute “in an impartial manner taking into account the totality of the circumstances”.
The LAC said Qomoyi’s utterances were not intended to be racist but were his response to what offended his own sense of justice and fairness.
Writing a unanimous judgment, with two other judges concurring, acting judge of appeal Graham Moshoana said given the history of the country, matters involving allegations of racism required careful consideration.
“They are not open and shut cases simply because words like ‘racist’ are uttered. They are not necessarily easy matters to navigate through.”
Moshoana said in this matter, it is true Qomoyi uttered the words “white racist” and directed them to Meyer.
“The key question that required careful consideration was whether calling Mr Meyer a white racist is in of itself a racist behaviour. Put differently, does the name-calling make Mr Qomoyi a racist himself?”
Moshoana said though racial slurs were inappropriate conduct and could be hurtful and upsetting, it did not axiomatically follow that the utterer of the slurs was necessarily a racist or displayed racist behaviour.
He said the Constitutional Court had provided guidelines in matters of this nature.
“The test demands one must consider the words first and determine whether the words, objectively viewed, were used by the utterer in a racist manner.”
He said the correct facts suggested when Qomoyi called Meyer a white racist, it was after a black worker was dismissed in a manner perceived by Qomoyi to be unfair.
“Certainly Mr Qomoyi, under those circumstances, was entitled to express his opinion of who Mr Meyer was to him.
“It may well be Mr Meyer was not a racist. However, what Mr Qomoyi observed on that day, after being invited to witness it by Mr Meyer, was unfair treatment of a black person by a white person,” Moshoana said.
The CSAAWU welcomed the ruling as a victory for the entire working class, particularly farm workers and dwellers.
Thulani Nkosi from the Socio-Economic Rights Institute, the public interest law centre which acted for Qomoyi, said while the result was a long time coming for his client, justice prevailed.
TimesLIVE
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