A case of alleged racism in the workplace has provided the Constitutional Court with an opportunity to clarify what constitutes hate speech and how it relates to freedom of speech. The court was told that it should adopt a position that if racism is proved in the workplace‚ dismissal should follow as a result unless there are exceptional circumstances.

A TimesLIVE report notes that was the argument put forward by Duncanmec‚ a refuse-handling equipment manufacturer‚ in a submission to the court yesterday. The case came about after the company dismissed a group of employees for singing a struggle song in isiZulu that‚ when translated‚ means: ‘Climb on top of the roof and tell them that my mother is rejoicing when we hit the boer’.

The workers challenged their dismissal successfully in the Metal and Engineering Industries Bargaining Council where an arbitrator found that the employees had been unfairly dismissed and ordered their re-instatement with three months back-pay instead of the 12 months they were entitled to.

In July 2016‚ the Labour Court dismissed Duncanmec’s application to review the arbitrator’s award.

The Labour Court said it was not an unreasonable conclusion that the song was a popular struggle song and that it was unfair to dismiss the employees for singing it‚ although it may have offended some managers‚ particularly white managers.

The Labour Appeal Court later dismissed the company’s appeal against that finding.

Duncanmec then approached the Constitutional Court.

‘Dismissal should follow unless exceptional circumstances exist. In this case‚ exceptional circumstances do not exist‚’ Sean Snyman‚ for Duncanmec‚ told the court, according to the TimesLIVE report. Snyman said the phrasing of the song‚ which referred to hitting a white person‚ should not be justified more than 20 years into democracy. Duncanmec said the conduct of the employees was so severe that the management had felt ‘threatened and offended’ and the incident had irreparably eroded the trust relationship between employer and employees.

Deputy Chief Justice Raymond Zondo asked whether the employer had expressed in its disciplinary code that the singing of such songs would be regarded as misconduct with dismissal as a sanction. Snyman said there was no need to write everything down.

The National Union of Metalworkers (Numsa)‚ on behalf of the employees‚ said the arbitrator was not required to determine whether the singing of the song by its members amounted to hate speech. Chris Orr‚ for Numsa‚ said the arbitrator was required to determine whether the employees had committed misconduct‚ and if so‚ whether such misconduct warranted dismissal. The court reserved judgment.

Full TimesLIVE report