Dismissal for racism in the workplace is treated seriously in South African labour law. However, not every racially charged statement automatically justifies dismissal.
A recent judgment by the Labour Appeal Court of South Africa highlights the importance of context, fairness, and proper legal tests when determining whether conduct is truly racist.
Background of the Case
The case involved CSAAWU obo Qomoyi v Namaqua Wines (Pty) Ltd.
- The employee, Vuyani Qomoyi, was a general worker and shop steward
- He witnessed the dismissal of a black employee without having had any prior involvement
- During a heated exchange, he called his supervisor a “white racist” who was “firing black people”
- He was dismissed for racist behaviour
The dismissal was upheld at arbitration by the Commission for Conciliation, Mediation and Arbitration (CCMA) and later confirmed by the Labour Court of South Africa.
The Legal Issue on Appeal
The key question before the Labour Appeal Court was:
Does calling someone a “white racist” automatically amount to racist misconduct justifying dismissal?
The employee argued that:
- The commissioner failed to apply the correct objective legal test
- The context of the statement was ignored
- The burden of proof was wrongly shifted onto the employee
The Correct Legal Test for Racist Utterances
The Court relied on principles established in Rustenburg Platinum Mine v SAEWA obo Bester.
This test requires asking:
Would a reasonable, objective, and informed person, considering the full context, view the words as racist or derogatory
Importantly, context is everything.
What the Labour Appeal Court Found
The Labour Appeal Court of South Africa
found that:
- The commissioner failed to apply the objective test
- The arbitration wrongly treated the phrase “white racist” as automatically racist
- The burden of proof was reversed, which is inconsistent with the Labour Relations Act
The Court emphasised that:
- The statement was made in anger during a workplace confrontation
- It reflected a perception of unfair treatment, not racial hostility
- It was not an assertion of racial superiority
Key Finding: Not All Racial Language Is Racist Misconduct
The Court held that:
- Calling someone a “white racist” does not automatically amount to racism
- In this case, it was an expression of frustration, not an act of racism
- The dismissal was therefore substantively unfair
Was Dismissal an Appropriate Sanction?
Even if misconduct had been established, the Court found:
- The employer’s disciplinary code did not prescribe dismissal
- The sanction of dismissal was disproportionate
Final Outcome
The Court ordered that:
- The dismissal was set aside
- The employee was retrospectively reinstated
- No costs order was made
Why This Case Matters
This judgment clarifies several important principles in South African labour law:
- Context is critical when assessing alleged racist remarks
- Employers must apply the correct legal test before dismissing employees
- Dismissal must be proportionate to the misconduct
- Not every offensive or emotionally charged statement justifies dismissal
Practical Takeaways
For Employers
- Avoid assuming that racially referenced language is automatically racist misconduct
- Apply the objective test before taking disciplinary action
- Ensure sanctions align with your disciplinary code
For Employees
- Context matters—statements made in anger may not justify dismissal
- You can challenge dismissal if the wrong legal test was applied
- Unfair dismissal disputes can be referred to the Commission for Conciliation, Mediation and Arbitration
Article written by Craig Berkowitz
24 April 2026
Craig Berkowitz is a specialist labour lawyer and Acting Judge in the Labour Court of South Africa with extensive experience in CCMA arbitrations, disciplinary hearings and Labour Court litigation.
📞 083 453 1822
✉️ cblaw@netactive.co.za
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