The Infamous “Race Card”

There have been a growing number of instances where unfounded allegations are made of racism in the workplace. Allegations such as these have severe consequences for employees should they be found to be false. False allegations of racism would be considered as material misconduct on the part of the employee and justify dismissal. 

It is the responsibility of the employer to ensure that these false allegations of racism are carefully investigated, ensuring that the interests of the accused who made the allegation and the party who was at the receiving end of the allegation is taken into consideration.

In the context of the South African workplace, this should be treated with the necessary caution. The consequences of being labelled as a racist has severe implications for the perpetrator and they may even face criminal charges and action can be taken in the equality courts. There are several reasons why an employee would make false allegations of racism, but in most instances, there would be some type of personal gain for the employee. Nonetheless, whoever acted improperly in the instance should bear the consequences.

National Union of Metalworkers of South Africa obo Baloyi and Others v O-Line (Pty) Ltd (2019) 28 CCMA the Commission for Conciliation, Arbitration and Mediation (“CCMA”)

A great example of employees falsely accusing their superior of making racist remarks towards them would be in the recent case of National Union of Metalworkers of South Africa obo Baloyi and Others v O-Line (Pty) Ltd (2019) 28 CCMA the Commission for Conciliation, Arbitration and Mediation (“CCMA”) 

The CEO of the company drove past the employees in his motor vehicle and reprimanded them for playing cards outside of the premises. The employees alleged that the CEO swore at them, called them “idiots”, and made a racial comment. The employees felt aggrieved by the CEO’s conduct, and after speaking to their shop steward, they were advised to lodge a formal grievance. This grievance form was completed but never submitted. 

The employees were placed into a disciplinary hearing for their conduct relating to the card game. The employees were found to be guilty and the outcome was a Final Written Warning. The morning of this disciplinary inquiry the union official explained to the employees that he forgot to submit the grievance, however, advised them that they should submit it as part of the disciplinary inquiry. 

When the company reviewed the grievance, they did not believe the contents which resulted in the company placing the same employees in a second disciplinary hearing for deliberately supplying falsified information regarding the CEO’s statement to the employees. The outcome of this hearing was a dismissal.

This matter was referred to the CCMA for arbitration. The Commissioner questioned why the employees only submitted the grievance on the day of the first hearing. The Commissioner held that it was probable that the NUMSA official advised the employees that if no disciplinary action is taken, they should not lodge the grievance. The commissioner held that the employees were aiming to use the grievance as a defence in the hearing. 

The Commissioner held that on a balance of probabilities the employees were found to be guilty of making false allegations. The Commissioner held that the dismissal was procedurally and substantively fair. The Commissioner considered that accusations of racism could cause irreparably damage to someone’s reputation and career.

Racism is unacceptable, and the false allegations of such for personal gain or maliciousness even more so. Should an employer find themselves in a situation where false allegations are made of racism, they should ensure that a proper investigation is done with the help of the Invictus Group.

Invictus Group is able to provide employers with sound labour advice throughout the entire process. Contact Invictus Group on 0861 737 263 for assistance in this regard.

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