SAEWA obo Bester v Rustenburg Platinum Mine and Another (JA45/16) [2017] ZALAC 23; (2017) 38 ILJ 1779 (LAC); [2017] 8 BLLR 764 (LAC) (3 May 2017)

SAEWA obo Bester v Rustenburg Platinum Mine and Another (JA45/16) [2017] ZALAC 23; (2017) 38 ILJ 1779 (LAC); [2017] 8 BLLR 764 (LAC) (3 May 2017)

The Labour Appeal Court held that the Labour Court erred by applying a subjective test to the effect of the word 'swartman' and failing to properly consider the objective context. The evidence showed that the appellant used the term as a descriptor for a person whose name he did not know, without intent to demean or denigrate. The context did not support a finding that the remark was objectively derogatory or racist. The Commissioner’s decision that the dismissal was substantively and procedurally unfair was reasonable and should not have been set aside. The appeal was upheld, and the Labour Court’s order was replaced with a dismissal of the review application.

Citation
[2017] ZALAC 23
Parties
Appellant: SAEWA obo Meyer Bester; Respondent: Rustenburg Platinum Mine; Respondent: Kobus Erasmus N.O.
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
3 May 2017
Case Number
JA45/16
Procedural Posture
Labour Appeal / Appeal From Labour Court Judgment Reviewing and Setting Aside CCMA Arbitration Award
Outcome
Appeal upheld. Labour Court’s order set aside. Review application dismissed with costs.
Judges
Jappie, Davis, Kathree-Setiloane
Legal Topics
Unfair Dismissal, Racial Discrimination, Arbitration Review, Workplace Misconduct, Objective Test, Disciplinary Code
Labour Law Unfair Dismissal Racial Discrimination Arbitration Review Workplace Misconduct Objective Test Disciplinary Code

Case Brief

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Parties

SAEWA obo Meyer Bester

Appellant

Rustenburg Platinum Mine

Respondent

Kobus Erasmus N.O.

Respondent

Procedural Posture

Labour Appeal / Appeal From Labour Court Judgment Reviewing and Setting Aside CCMA Arbitration Award

Legal Issues

  1. 1 Whether the use of the term 'swartman' by the employee constituted a derogatory and racist remark in breach of workplace rules.
  2. 2 Whether the dismissal of the employee was substantively and procedurally fair.
  3. 3 Whether the Labour Court applied the correct test in reviewing the arbitration award.

Ratio Decidendi

The Labour Appeal Court held that the Labour Court erred by applying a subjective test to the effect of the word 'swartman' and failing to properly consider the objective context. The evidence showed that the appellant used the term as a descriptor for a person whose name he did not know, without intent to demean or denigrate. The context did not support a finding that the remark was objectively derogatory or racist. The Commissioner’s decision that the dismissal was substantively and procedurally unfair was reasonable and should not have been set aside. The appeal was upheld, and the Labour Court’s order was replaced with a dismissal of the review application.

Court Disposition

Appeal upheld. Labour Court’s order set aside. Review application dismissed with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the Labour Court in the review application is set aside and replaced with: 'The review application is dismissed with costs.'