Johannesburg - Institutions across the board are failing to uphold their constitutional obligations to eradicate racism.
This was the assertion of Chief Justice Mogoeng Mogoeng in a damning Constitutional Court judgment on Tuesday condemning the behaviour of a racist employee, Sars and the CCMA.
The ruling is expected to set a precedent for how employers handle severe racism in the workplace.
The unanimous judgment was born of a nine-year-old decision by then Sars commissioner Pravin Gordhan after he dismissed anti-smuggling officer JJ Kruger for calling one of his managers the k-word, twice. When Kruger was subjected to an internal disciplinary hearing, he pleaded guilty and was given a written warning.
Gordhan decided that wasn’t punishment enough, and in a unilateral move fired Kruger.
Upon taking the matter to the CCMA, the arbitrator ruled that Kruger had been unfairly dismissed and reinstated him.
Sars approached the Labour Court and the Labour Appeals Court, both of which upheld the CCMA ruling. It was only on Tuesday that the Concourt reversed the CCMA’s “irrational” decision to reinstate Kruger.
It ordered Sars to compensate Kruger for the irregular dismissal.
The chief justice said institutions across the board were failing to uphold their constitutional obligations to eradicate racism.
“Are we perhaps too soft on racism and the use of the (k-word) in particular? My observation is that very serious racial incidents hardly ever trigger a fittingly firm and sustained disapproving response,” he said.
Citing numerous experts, the chief justice said the use of the word was an indictment on an entire race, perpetuating the stereotype that black people were lazy and incompetent.
He chastised Kruger for claiming he was forced to admit his racism. “He was disbelieved by the (CCMA) arbitrator. The arbitrator was dealing with someone who tried to conceal his racist remarks and lie about them,” Justice Mogoeng said.
He said the CCMA’s decision to reinstate Kruger was the equivalent of bringing in a “ticking time-bomb”, where his black fellow employees knew he regarded them as “lazy, incapable of leading him and intellectually inferior to him solely because of their race”.
While he acknowledged the correct CCMA ruling that the dismissal was unfair, Justice Mogoeng said a reinstatement was the least rational remedy. “She (the arbitrator) should also have factored into her decision that Sars, as an organ of state, is required to play (a role) in the fight against racism and in efforts aimed at its eradication in the workplace and society."
While he accepted Sars’s argument that a continued relationship with Kruger would have been intolerable, he said the institution had, in its conduct in dismissing him, “floated from one blunder to another, thus causing Mr Kruger and his sponsors to be financially burdened through litigation, when this could have been avoided”.
Justice Mogoeng said that before the commissioner had reversed the initial sanction, a deal had been struck with regard to Kruger’s severance package, “but the Sars commissioner then acted against (this) and in effect reneged on their own deal”.
He also noted that Sars had not argued against the fact that the dismissal was unfairly handled.
The court ruled that Sars should give Kruger compensation equivalent to six months’ salary at the time of his dismissal, that the ruling to reinstate him was overturned and that each party paid their own costs.