Dismissal based on race is classified as automatically unfair dismissal in terms of section 187(1)(f) of the Labour Relations Act (No. 66 of 1995). This means that such dismissal violates an employee’s constitutional rights to equality, dignity and fair labour practices.
In the matter of Bakulu v Isilumko Staffing (Pty) Ltd and others (2018) 27 (LC) Mr Bakulu was dismissed on the grounds of incompetence, but Bakulu alleged that he had been automatically unfairly dismissed on the grounds of his race.
Prior to Bakulu’s dismissal he was involved in a quarrel with one of his managers concerning his hourly wage. Bakulu subsequently alleged that his manager had made racist remarks to him and that he was earning lower wages owing to the colour of his skin.
Not long after the quarrel with one of the managers, a disciplinary charge was brought against Bakulu for having slept while on duty and for having incorrectly entered information and also for having forwarded inconsistent information to his employer. During the hearing for the above reasons, Bakulu was offered alternative posts, which he declined. Bakulu then was dismissed on the grounds of incompetence. Subsequently, he instituted legal proceedings against the employer on the grounds of automatically unfair dismissal. He alleged that he had been dismissed because of his race and not because of incompetence.
However, in the Labour Court no evidence was given that Bakulu had been dismissed because of his race. In addition, no proof was furnished that white workers in the same position as Bakulu were earning better salaries or that they were less qualified than him. Therefore, there was nothing that could be referred to in order to prove discrimination on the grounds of race.
Because Bakulu did not produce any valid and relevant evidence that he had been dismissed on the grounds of race, the court granted the employer absolution from the instance. Therefore, the dismissal of Bakulu was found not to be automatically unfair on the grounds of race.
In terms of section 192 of the Labour Relations Act, the onus is on employees to prove dismissal. The onus will then be on the employer to prove that the dismissal was fair. In cases of alleged automatically unfair dismissal, however, the onus will be on the employee to prove dismissal in terms of section 187(1) of the Act. If this cannot be proved, the dismissal will not be automatically unfair, as discussed above.
However, this is an extraordinary case where alleged racism was not proved, and therefore we would advise all employees to do everything in their power to avoid any possible discrimination based on race. For more expert advice on this matter, please contact our Support Centre on 0861 25 24 23.
Author: Dana Grové