Unfounded allegations of racism has colloquially become known as “playing the race card”.

In a judgment handed down by the Labour Appeal Court ( “LAC”) in February 2019 the act of “playing the race card” by an employee was rejected in a unanimous judgment by the LAC.

The employee was employed in a management role and was based in Kimberley and reported into the Regional Operations Executive ( “ROE” ) for the Western and Northern Cape, who was based in the Western Cape.

Following the ROE giving the employee a score of 54% in his supervisory assessment, and the employee taking umbrage at receiving this low score, the relationship between the employee and the ROE deteriorated, and the employee was ultimately charged with numerous disciplinary infractions which arose from this deteriorating relationship. After a disciplinary enquiry, the employee was found guilty and was dismissed.

The employee referred the matter to the CCMA where the Commissioner found the dismissal to be both procedurally and substantively fair. The matter was taken on review to the Labour Court where the dismissal was found to be substantively unfair. The matter then came before the LAC.

One of the disciplinary infractions by the employee involved attacking the honour, dignity or good name of the ROE, because the employee accused the ROE of being racist. ( For the purposes of this article I have not dealt with each of the disciplinary infractions, but have only dealt with the issue of the employee accusing the ROE of being racist ) .

In addition to other tacit accusations of racism that had been made by the employee against the ROE which attacked the ROE’s honour and integrity, the employee was also found guilty based on an email which contained the following statements:

I just don’t feel safe in my work anymore as an African manager in this region and I intend taking matter (sic) up with Management and Portfolio Committee.’

I honestly think that Africans are being vilified in the region under the coded name of poor performance and it’s also clear in the non-appointment of African managers in the region.

The other tacit accusations of racism that had been made by the employee against the ROE concerned an email in which email the employee had complained, without substantiation, about issues of racism and harassment in the ROE’s office, and stated that the “situation of racism in the Western Cape will explode, people are just afraid to talk and rather channel their advances to me.” The employee had been cautioned by the recipient of the email that he should not make unsubstantiated allegations.

The LAC held the following :

Although one naturally may be sympathetic to a colleague who has subjectively experienced a negative performance assessment as racial discrimination, unjustified allegations of racism against a superior in the workplace can have very serious and deleterious consequences.  Employees who allege tacit racism should do so only on the basis of persuasive objective information leading to a compelling and legitimate inference, and in accordance with grievance procedures established for that purpose. Unfounded allegations of racism against a superior by a subordinate subjected to disciplinary action or performance assessment, referred to colloquially as “playing the race card”, can illegitimately undermine the authority of the superior and damage harmonious relations in the workplace.

Moreover, false accusations of racism are demeaning, insulting and an attack on dignity, more so when the person attacked, by reason of a previously disadvantaged background, probably has suffered personally the pernicious effects of institutional and systemic racism.                                              

The LAC also went on to find that the commissioner was justified in finding that the employee ought to have raised any issues he had with the ROE’s alleged racism in the proper forum. It was not appropriate to attack the ROE by way of an e-mail, especially when there was no clear objective basis for it.

In the result, the LAC found that the dismissal of the employee was fair.

Whilst any incident of racism in the workplace can never be condoned, the LAC at the same time also made it clear that unsubstantiated allegations of racism ie. “playing the race card” against a superior by a subordinate who was subjected to disciplinary action or performance assessment, can undermine the authority of the superior and damage harmonious relations in the workplace.