This article is a discussion of the case in which the constitutional court held that the word ‘boer’ was not in itself racist but that the context in which it was used could be, inappropriate and offensive. Employee’s dismissed for singing struggle songs about celebrating ‘hitting’ boers was found to be inappropriate but not dismissable. The Constitutional Court noted a troubling trend of racism in the workplace.

On 13 September 2018 the Constitutional Court handed down judgment in an application for leave to appeal against a judgment of the Labour Court, which upheld a decision of the Metal and Engineering Industries Bargaining Council (Bargaining Council) that overturned a decision by Duncanmec (Pty) Ltd to dismiss nine employees for singing a struggle song with racial lyrics. The affected employees are represented by National Union of Metalworkers of South Africa (NUMSA).

Between 30 April and 2 May 2013 a number of Duncanmec employees participated in an unprotected strike. While some of them only protested by refusing to work, nine employees were filmed dancing and singing songs. One of these songs was a well-known struggle song with lyrics that translate to “climb on the rooftop and shout that my mother is rejoicing when we hit the boers”. The employees were found guilty of: (1) participating in unlawful strike action; and (2) singing a racially offensive song. They were given final warnings for the first offence and dismissed for the second. Duncanmec considered the conduct of the nine employees to have been so severe that it had irreparably eroded the trust relationship between it as employer and the employees.

Before the Bargaining Council, the arbitrator ordered the reinstatement of the dismissed workers because she found that the employment relationship had not broken down irretrievably. Her reasoning was that the employees had shown remorse and that while the song could be offensive and cause hurt, there was a need to differentiate between singing the song and referring to someone in racist language.

The Labour Court considered whether the arbitrator’s finding that the dismissal was substantively unfair, and concluded that reinstatement was a decision that a reasonable arbitrator could have made. It held that the strike was short-lived and not violent; that Duncanmec had not shown that the song was prohibited in terms of a workplace rule; and that the song was part of the history and struggle for workers’ rights. Thus, the singing of the song could not be seen as misconduct in the true sense. As such, the arbitrator’s decision was reasonable.

In a unanimous judgment penned by Jafta J (in which Zondo DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Madlanga J, Petse AJ and Theron J concurred), the Constitutional Court remarked that persistent instances of racism in the workplace were becoming worrisome and that although the new constitutional order could hold people accountable for racist conduct, it could not by itself make people stop being racist. The Court held that the use of the word “boer” on its own was not a racist or racially offensive word but in this case the use of the word in a song by the employees was inappropriate.

Duncanmec levied several accusations against the arbitrator in its application for leave to appeal such as the contention that the arbitrator applied her own sense of fairness in determining whether the dismissal was substantively unfair and that she had gone soft on racism.

The Court evaluated the arbitrator’s reasoning and in applying the test set out in Sidumo held that it could not be said that she acted unreasonably as contended. The Constitutional Court dismissed the appeal.