Concourt rules on Strug­gle song

The Mercury - - FRONT PAGE -

THE Con­sti­tu­tional Court has ruled that the singing of a Strug­gle song dur­ing a work­place strike may have been of­fen­sive, but did not war­rant the dis­missal of the work­ers.

The court was deal­ing with an ap­pli­ca­tion for leave to ap­peal brought by man­u­fac­tur­ing com­pany Dun­can­mec (Pty) Ltd.

The com­pany had dis­missed nine em­ploy­ees for singing a Strug­gle song, with lyrics which loosely trans­lated as: “Climb over the roof and tell them that my mom is re­joic­ing if I hit a Boer.’’

The com­pany sought leave to ap­peal a Labour Court rul­ing, which had agreed with a de­ci­sion by an ar­bi­tra­tor, in the Metal and En­gi­neer­ing In­dus­tries Bar­gain­ing Coun­cil, who had found that work­ers should not have been fired for singing the song.

Ac­cord­ing to the com­pany, the song was directed at “white man­age­ment” and con­sti­tuted hate speech.

The em­ploy­ees had been charged with par­tic­i­pat­ing in un­law­ful strike ac­tion and singing a racially of­fen­sive song in 2013.

They were found guilty on both charges and given fi­nal warn­ings for the first of­fence and dis­missed for the sec­ond.

Dun­can­mec said the con­duct of the nine em­ploy­ees was so se­vere that the man­age­ment had felt “threat­ened and of­fended” and the in­ci­dent had ir­repara­bly eroded the trust re­la­tion­ship be­tween em­ployer and em­ploy­ees.

But the ar­bi­tra­tor or­dered the re­in­state­ment of the dis­missed work­ers as the song, while in­ap­pro­pri­ate and of­fen­sive, was dif­fer­ent from ut­ter­ing racist words, and Dun­can­mec had not shown that the song was pro­hib­ited in terms of a work­place rule.

In its judg­ment handed down yes­ter­day, the Concourt said it was con­cerned by the “in­creas­ing num­ber of com­plaints of racism at the work­place” that come be­fore the courts.

The court fur­ther said that even if the singing of the song had amounted to racism, this would not have au­to­mat­i­cally re­sulted in the work­ers be­ing dis­missed.

The court said each per­pe­tra­tor of racism had to be dealt with firmly but with fair­ness.

The court there­fore dis­missed the ap­peal and found that the ar­bi­tra­tor’s rul­ing in the mat­ter had been rea­son­able and should not be in­ter­fered with.

“It will be re­called that in de­ter­min­ing the fair­ness of the dis­missal the ar­bi­tra­tor was ap­ply­ing a “moral or value judge­ment to es­tab­lished facts and cir­cum­stances.

“A reading of the award shows that the ar­bi­tra­tor con­sid­ered the com­pet­ing in­ter­ests of Dun­can­mec and the em­ploy­ees,” the court said.

The Na­tional Union of Me­tal­work­ers of South Africa, which rep­re­sented the work­ers in the mat­ter, said the court’s rul­ing was a vic­tory.

“Strug­gle songs are a part of who we are and how we ex­press our­selves as the work­ing class ma­jor­ity in South Africa.

“Any lim­i­ta­tion on this right is a lim­i­ta­tion on the right to free­dom of speech.”

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