The consequences of unfounded racist comments

In the case of Legal Aid SA v Mayisela & others (2019) 40 ILJ 1526 (LAC) the Labour Appeal Court (LAC) had to deal with a situation in which an employee had claimed that his supervisor had exhibited racist conduct because he had been given a negative performance rating.

The Labour Court (LC) found that any employee was entitled to allege racist conduct. If this happens it becomes the duty of the employer to investigate these claims. The LC found that the accusation itself did not amount to misconduct.

On appeal to the LAC, this court agreed with the LC’s point of view but found that when the employer found that the allegations were in fact false, the employee was guilty of misconduct.

The LAC found that an employee’s feelings of being subjected to racism are not sufficient to allow a claim of racism to be made.

The Court found there must be “persuasive objective information leading to compelling and legitimate inference” that racism has taken place.

Taking into account the fact that employee’s allegations were levelled against his superior, the Labour Appeal Court found that: “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. Moreover, false accusations of racism are demeaning, insulting and an attack on dignity, more so when the person attacked, by reason of a previously disadvantaged background, probably has suffered personally the pernicious efforts of institutional and systemic racism.”

This case clearly shows that you have to have some proper grounds before you level the allegation of racism at the workplace.

Employees need to be protected against racism. It is equally unacceptable for allegations of racism to be levelled against innocent parties. Making unfounded allegations is serious and can lead to dismissal.

In this weekly column, labour lawyer Jonathan Goldberg, CEO of Global Business Solutions, looks at various aspects of labour law.