The Socio-Economic Rights Institute of South Africa (Seri) has approached the Labour Appeal Court to contest the dismissal of a man who was fired for calling his manager a “white racist”.
According to Seri, the dismissal of Vuyani Qomoyi, who was employed as a general worker at Namaqua Wines since 2019, infringes the rights of freedom of expression.
Seri is representing Qomoyi and the Commercial, Stevedoring, Agricultural and Allied Workers Union (CSAAWU).
Seri senior communications officer Edward Molopi said the case raises a fundamental question of whether referring to manager Sybrandt Meyer as a “white racist” constitutes racist conduct and whether the Labour Court’s finding unjustifiably limits an employee’s right to freedom of expression.
“The court erred in failing to consider whether the statement that Meyer was a ‘white racist’ was protected by the employee’s right to freedom of expression, which includes the right to form and express opinions, even if they are hurtful,” said Molopi.
According to Seri, Qomoyi’s dismissal stems from an incident in August 2021.
Molopi said Meyer, a bottling manager at Namaqua Wines, was Qomoyi’s supervisor at the time and had called him to the human resources office to serve as a witness to the dismissal of a fellow employee. Meyer allegedly refused to disclose the reasons for the dismissal despite Qomoyi’s inquiries.
“Upon witnessing Meyer dismiss a fellow employee, Qomoyi protested and questioned the procedure followed. During a heated exchange, he accused Meyer of being a ‘white racist’ who dismisses black employees without representation.
“Qomoyi was subsequently charged with ‘displaying racist behaviour’ and dismissed on October 15 2021, following a disciplinary hearing,” Molopi said.
The labour court dismissed the review application with costs and upheld Qomoyi’s dismissal. It found that the Commission for Conciliation, Mediation and Arbitration (CCMA) arbitration award was not reviewable and that Qomoyi’s conduct warranted dismissal, with the outcome of the arbitration deemed reasonable.
“The court held that there was a workplace rule prohibiting racism, which constituted a serious offence warranting dismissal, even for a first offence. It further found that Qomoyi breached this rule, leading to disharmony in the workplace and a breakdown in the relationship between himself and other employees, particularly Meyer,” read the court papers.
Relying on existing jurisprudence, the court held that calling another employee racist without just cause, truth or reasonable grounds constitutes serious misconduct and may itself reflect a racist attitude.
The court concluded that, when viewed objectively, Qomoyi’s remarks were racist, as there was no justifiable basis for his conduct, and that his statements reflected his own inappropriate behaviour towards Meyer.
However, the CSAAWU argues that Qomoyi’s remarks, on their own, cannot be classified as racist and instead fall within constitutionally protected freedom of expression and opinion.
“As such, the Labour Court unjustifiably limited Qomoyi’s right to freedom of expression, particularly as the truthfulness or falsity of the remark was never investigated by Namaqua Wines,” the union submitted in court papers.
The CSAAWU further argued that the cost order against it could have a chilling effect on litigants seeking to approach the courts with disputes.
Judgment has been reserved.
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