Duncanmec (Pty) Ltd (employer) dismissed nine workers via a disciplinary hearing ‘for singing a struggle song with racial lyrics’ after finding them guilty of, ‘(1) participating in unlawful strike action; and (2) singing a racially offensive song’. They were accordingly ‘given final warnings for the first offence and dismissed for the second’. Duncanmec found ‘the conduct of the nine employees to have been so severe that it had irreparably eroded the trust relationship between it as employer and the employees’. In this regard the nine workers, who were represented by the National Union of Metalworkers of South Africa (NUMSA), ‘were filmed dancing and singing songs one of which ‘was a well‑known struggle song with lyrics that translate to “climb on the rooftop and shout that my mother is rejoicing when we hit the boers”.
The arbitrator in the ‘Metal and Engineering Industries Bargaining Council (Bargaining Council)’ subsequently ordered that the workers be reinstated and thus overturned the Duncanmec (Pty) Ltd decision. The decision of the Bargaining Council was based on the fact ‘that the employees had shown remorse and that while the song could be offensive and cause hurt, there was a need to differentiate between singing the song and referring to someone in racist language’. The Labour Court upheld this decision of the Bargaining Council.
Duncanmec (Pty) Ltd then applied to the Constitutional Court for leave to appeal against the judgment of the Labour Court (See Duncanmec (Pty) Ltd v Gaylard, J N.O. and Others, CCT 284/17). The Constitutional Court, which delivered its judgment on 13 September 2018, upheld the decision of the Bargaining Council to reinstate the workers (which effectively overturned the decision of the employer to dismiss the workers).
On the issue of ‘whether the conduct of the employees in singing the struggle song in question constituted racism’, the following is instructive:
The Constitutional Court noted that the arbitrator did not find that the relevant song had racist words. The arbitrator’s finding that ‘the song was inappropriate’; ‘can be offensive’; and can ‘cause hurt to those’ hearing it, was also noted. The distinction drawn by the arbitrator between the singing of the song and making reference ‘to someone with a racist term’, was also taken into account by the Constitutional Court.
Since NUMSA did not dispute ‘the finding (of the arbitrator) that the singing of the song at the workplace was inappropriate and offensive in the circumstances’, the Constitutional Court approached this case from the perspective ‘that the employees were guilty of a racially offensive conduct’.
In the determination of the fairness of the dismissal that followed from the singing of the song, the Constitutional Court followed the reasoning of the arbitrator who ‘considered the competing interests of Duncanmec and the employees’. To this end after weighing those interests, the arbitrator approached the matter with leniency. In this regard ‘she concluded that a final written warning and reinstatement, coupled with a limited compensation was a fair outcome’.