Navigating Race and Discrimination in the Workplace

‘’There is no race card to play because race is intertwined into everything’’ – Sheree Atsheson

Article by Anne-Marie Bodenstein (Industrial Relations Specialist)

Introduction

The history of South Africa makes any discussions around race quite challenging. Despite how far we have come from our sordid past, the reality is that often the disparity and inequalities remain.

In a recent article, MISA discussed the consequences of lodging a false grievance. In this article, we briefly discuss the expansive topic of Racism in the Workplace, its consequences, and onus of proof.

The Proverbial Race Card

As recent as June 2021, the Eskom board received the outcome of an investigation whereby certain allegations were laid against the CEO, of which included racial discrimination.  Eskom’s Senior Counsel found that these allegations were unsubstantiated, and the employee that laid these claims was dismissed following a disciplinary hearing.

An incident of racism can never be condoned, however, in saying this, such claims need to be substantiated. Playing the proverbial ‘’race card’’ in the workplace, without evidence to show the racism, may have severe consequences for the plaintiff employee. 

In the recent case of Legal Aid SA v Mayisela & Others (2019) 40 ILJ 1526, (LAC) Mr. Mayisela alleged that his supervisor had exhibited racial conduct by giving him a negative performance rating. 

In alleging the racism, Mr. Mayisela sent an email stating, ‘’I just don’t feel safe in my work anymore as an African manager in this region and I intend taking matter (sic) up with Management and Portfolio Committee. I honestly think that Africans are being vilified in the region under the coded name of poor performance and it’s also clear non-appointment of African managers in the region.’’ He further stated, the ‘’situation of racism in the Western Cape will explode, people are just afraid to talk and rather channel their advances to me.’’ [Own emphasis]

Mr. Mayisela could not substantiate any of the claims that he made and the Company subjected Mr. Mayisela to a disciplinary hearing, on the basis that the Regional Operations Executive (ROE) felt aggrieved, alleging that his honour, dignity or good name was attacked by Mr. Mayisela’s email.

The Labour Appeal Court (LAC) re-iterated the firm stance taken against employees who make false accusations of racism, stating, “Employees who allege tacit racism should do so only on the basis of persuasive objective information leading to a compelling and legitimate inference, and in accordance with grievance procedures established for that purpose. Unfounded allegations of racism against a superior by a subordinate subjected to disciplinary action or performance assessment, referred to colloquially as ‘’playing the race card,’’ can illegitimately undermine the authority of the superior and damage harmonious relations in the workplace.” [Own Emphasis]

Furthermore, the LAC confirmed that an employer is within their right or prerogative to question performance related issues with their employees.

Challenging performance related issues is not a taboo as confirmed by the LAC, the justification in playing the race card without any substantiation is!

Conclusion

Equality, is every South African’s fundamental human right, as conferred in the Constitution of the Republic of South Africa, as such instances of Racism in the workplace will not be tolerated.

However, unsubstantiated allegations of racism will not be condoned as they undermine the authority of management, damage harmonious relations and lead to a breakdown of trust in the workplace, which may very well led to a dismissal.

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Kindly utilise the following e-mail addresses and links for assistance: 

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