The “k-word” continues to evoke strong emotions and is seen as a symbol of past and present racial oppression. Its use, even in reported speech or academic contexts, can be deeply traumatic for many South Africans.
Imagine being dismissed from your job because your boss would prefer to hire a white worker, only to hear your boss call you a racial slur as you leave the building. Now imagine that slur being uttered in front of the CEO, who does nothing.
This isn’t a scene from apartheid-era South Africa; it happened in 2016, more than three decades after the fall of that oppressive regime. And it had an important sequel this month in the Labour Court.
That court’s judgment on 2 September 2024 in Mavundla v Frame Leisure Trading (Pty) Ltd serves as a stark reminder that racial discrimination in the workplace remains a pressing issue in South Africa.
This case, which concluded with a ruling of automatically unfair dismissal, exposes the insidious ways in which racism can masquerade as legitimate performance management. It also highlights the critical need for employers to actively combat discrimination and foster inclusive work environments.
The employee, Sibongile Mavundla, was employed as a payroll administrator from July 2016 until her dismissal in December 2016. Mavundla initially had a good relationship with her managers, Tinus Pretorius and Sharon Pillay, who trained her for the position.
‘Liberal element’
In November 2016, Pretorius sent emails to a recruitment agent expressing a desire to replace Mavundla with a “young graduate white female”, stating he wanted to “stay away from the liberal element with political agendas”.
Shortly after these emails, the employer hired a white woman who was Pretorius’ romantic partner to assist with payroll duties. The employer accused Mavundla of deliberately failing to process payroll information correctly, resulting in financial losses for the company. She was dismissed after a disciplinary hearing in December 2016.
When collecting her belongings, Pretorius allegedly called Mavundla a racial slur — the “k-word” — in the presence of other managers. When Mavundla indicated that she wished to extract and save (on to a memory stick) personal information that was stored on her work laptop, Pretorius told her that her laptop had been sent to “forensics” because blacks were criminals.
Mavundla challenged her dismissal, claiming it was automatically unfair as it was based on racial discrimination. The employer contended that the dismissal was solely due to the employee’s misconduct and poor work performance.
But evidence showed some payroll errors occurred when the employee was on leave or when information was sent to her very late, giving her little time to process it. The employer did not call key witnesses like Pretorius or the disciplinary hearing chairperson to testify at the Labour Court trial. Mavundla sought reinstatement, while the employer argued that the employment relationship had broken down irretrievably.
Automatically unfair
The Labour Court held that the employee’s dismissal was automatically unfair under s 187(1)(f) of the Labour Relations Act (LRA) 66 of 1995, as it was based on racial discrimination. The court held that the employee met the evidential burden through the racist emails from Pretorius and the overt racism exhibited at her dismissal. If it was not for the employee’s race, she would not have been dismissed. Racism was the main or proximate cause of her dismissal.
The court held that while the employee’s work performance was not exemplary, the employer was unwilling to address her shortcomings because of her race. A white employee would probably have been treated differently.
As to the remedy, the court held that reinstatement of the employee was not appropriate under s 193(2)(b) of the Labour Relations Act, as the employment relationship had become intolerable. The employee was therefore awarded the maximum compensation permissible — 24 months’ wages — considering the egregious nature of the racial discrimination and the extent of the employee’s loss.
Correct and crucial
The judgment’s emphasis on the seriousness of racial discrimination in the workplace is both correct and crucial in the South African context. This approach aligns with the country’s constitutional values and labour law principles. The judgment correctly reflects the values enshrined in the South African Constitution, which explicitly prohibits unfair discrimination based on race. By taking a strong stance against racial discrimination, the court upheld these constitutional principles.
Given South Africa’s history of apartheid and systemic racial discrimination, the court’s approach is appropriate and necessary. It acknowledges the ongoing need to address and rectify historical injustices in the workplace.
By treating racial discrimination with such seriousness, the judgment sends a clear message to employers that such practices will not be tolerated. This can serve as a powerful deterrent against future discriminatory behaviour.
The court correctly identified and condemned both overt racism (use of racial slurs) and more subtle forms of discrimination (biased hiring preferences).
Comprehensive approach
This comprehensive approach is crucial in addressing the full spectrum of discriminatory practices. The award of maximum compensation reflects the court’s view of the severity of racial discrimination.
This aligns with the principle that remedies should not only compensate the victim, but also discourage future violations. By holding the company accountable for the actions of its senior managers, the judgment correctly emphasises that organisations must take responsibility for creating and maintaining non-discriminatory work environments.
The k-word is deeply rooted in South Africa’s history of racial oppression. It was commonly used during apartheid as a derogatory term for black people, carrying connotations of inferiority and subhuman status. Its use was part of a systematic effort to dehumanise and subjugate the black population.
In post-apartheid South Africa, the use of the k-word is considered hate speech and is criminalised. The word continues to evoke strong emotions and is seen as a symbol of past and present racial oppression. Its use, even in reported speech or academic contexts, can be deeply traumatising for many South Africans.
South African courts have consistently treated the use of the k-word with the utmost seriousness. In several cases, its use has been grounds for dismissal from employment, even when used in private conversations. This reflects the judiciary’s understanding of the word’s power to cause harm and its incompatibility with constitutional values.
Interestingly, while most South Africans refuse to print the k-word in full, the judge opted to use the full word. The practice of not using the word reflects a societal understanding of the word’s offensive nature and a collective effort to minimise its presence in public discourse.
Racial abuse
The court’s decision to use the full word in this judgment, rather than the euphemistic “k-word”, is notable. The judge said that this choice was at the request of the victim, who did not want to dilute the impact of the racial abuse she had suffered.
This approach highlights the tension between accurately representing the severity of the discrimination and avoiding the perpetuation of harmful language.
While deeply offensive, the explicit use of the word in the judgment serves an educational purpose. It starkly illustrates the nature and severity of the racial discrimination experienced by the employee, leaving no room for ambiguity about the conduct being condemned.
As South Africa continues to grapple with its complex history and the ongoing challenges of building a truly equal society, cases like this serve as important milestones. They remind us that the fight against workplace discrimination is not just a legal obligation but a moral imperative essential to the country’s social and economic progress.
The judgment’s message is clear: racism has no place in South African workplaces, and employers who fail to address it will face significant legal and reputational consequences.
It’s time for all organisations to take a hard look at their practices and culture, and to commit wholeheartedly to creating workplaces where all employees can thrive, regardless of their race. DM