Constitutional Court File picture: Tiro Ramatlhatse

Johannesburg - A case in which nine employees were fired from work for singing a Struggle song with racial connotations will be heard at the Constitutional Court on Thursday morning.

The nine employees were dismissed from work after facing charges of participating in an unlawful strike and for singing a racially “offensive” song.

The strike took place in May 2013 and the workers were filmed singing a struggle song with the lyrics; “climb on top of the rooftop and shout that my mother is rejoicing when we hit the boers”. 

They were found guilty, during an internal disciplinary hearing, on both charges and were dismissed by Duncanmec for singing the song which according to employer, resulted in an irreparable relationship.

The case landed up at the Metal Engineering Industries Bargaining Council which ruled that the employees should be reinstated as the relationship with the employer had not broken down irreparably. The council found that the dismissal was unfair and that case law dictates that the context in which a statement is made is important. 

Duncanmec approached the Labour Court to appeal the bargaining council ruling. The Labour Court upheld the bargaining council ruling and said the company had not proved that singing the struggle song was prohibited in terms of workplace rules. 

The company’s application to appeal the Labour Court ruling was dismissed by the court. The company then approached the Constitutional Court.

On Thursday the court will hear from the employees who will be represented by trade union Numsa.

Numsa disagrees that the employment relationship had broken down and argues that Duncanmec had failed to prove this. 

The company argues that struggle songs such as one sang during the strike in 2013 by the nine employees had no place in the workplace.

Political Bureau