ConCourt to decide if ‘boer’ lyric in Struggle song is grounds for dismissal

Employer wants striking workers axed for ‘racism’

The Constitutional Court should adopt a position that if racism is proved in the workplace‚ dismissal should follow as a result, unless there are exceptional circumstances.

The argument was put forward by Duncanmec‚ a company manufacturing refusehandling equipment in Johannesburg‚ in a submission to the ConCourt yesterday.

The company dismissed eight employees in 2013 after they had embarked on an unprotected strike due to an overtime dispute.

However, the workers were not dismissed because they engaged in unprotected strike‚ but rather for singing a Struggle song in isiZulu that‚ when translated‚ means: “Climb on top of the roof and tell them that my mother is rejoicing when we hit the boer.”

The workers challenged their dismissal in the Metal and Engineering Industries Bargaining Council. In May 2014‚ an arbitrator found that the employees had been unfairly dismissed. The arbitrator ordered their reinstatement with three months’ back-pay instead of the 12 months they were entitled to.

In July 2016‚ the Labour Court dismissed Duncanmec’s application to review the arbitrator’s award.

The Labour Appeal Court later dismissed the company’s appeal against that finding. Duncanmec then approached the Constitutional Court.

Sean Snyman‚ for Duncanmec‚ said the phrasing of the song‚ which referred to hitting a white person‚ should not be justified. “Dismissal should follow unless exceptional circumstances exist. In this case‚ exceptional circumstances do not exist‚” Snyman said.

Deputy Chief Justice Raymond Zondo asked whether the employer had expressed in its disciplinary code that the singing of such songs would be regarded as misconduct with dismissal as a sanction. Snyman said there was no need to write everything down.

The National Union of Metalworkers of South Africa (Numsa)‚ on behalf of the employees‚ said the arbitrator was not required to determine whether the singing of the song by its members amounted to hate speech.

Chris Orr‚ for Numsa‚ said the arbitrator was required to determine whether the employees had committed misconduct warranting dismissal.

“The arbitrator visited a difficult sanction‚ a nine-month unpaid sanction on the employees. She said they must take responsibility for singing that song. This was not merely a slap on the wrist,” Orr said.