Is the Singing of Offensive Songs a Dismissible Offence?
Is the singing of offensive songs a dismissible offence?
The South African Constitutional Court recently handed down judgment inDuncanmec Proprietary Limited v Gaylard N.O & Othersin which it considered whether the singing of struggle songs, containing words that could be construed as offensive, warranted dismissal.
In this matter, members of the National Union of Metal Workers of South Africa (“NUMSA”) who were employed by Duncanmec (Pty) Ltd, embarked on an unprotected strike at Duncanmec’s premises. During the course of the strike, the strikers danced and sang struggle songs. The lyrics of one of the songs they sang can be translated as follows: “climb on top of the roof and tell them that my mother is rejoicing when we hit theboer.”
The strikers rejected an ultimatum to return to work and were dismissed.
Duncanmec levelled the following charges of misconduct against nine of its employees:
The disciplinary chairperson found the employees guilty of both charges. He imposed a sanction of a final written warning for the first offence. He characterised the singing of the struggle song, as reflected in the second charge, as racist conduct that merited dismissal. Duncanmec’s disciplinary code did not list the singing of struggle songs a dismissible offence.
Dissatisfied with their dismissals, the employees referred an unfair dismissal dispute to the relevant bargaining council with jurisdiction. In her arbitration award, the arbitrator concluded that, while the singing of the song was inappropriate and “can be offensive and cause hurt to those who hear it”, it did not constitute racist conduct: a distinction must be drawn between the singing of a song and referring to someone in racist terms. The arbitrator found that the dismissals had been unfair. She reinstated the nine employees; but to show her disapproval of the singing of the song, she limited their compensation to three-months’ remuneration.
Labour Court and Labour Appeal Court
Duncanmec launched an application to review and set aside the arbitrator’s award. NUMSA opposed the review application. It contended that:
The Labour Court endorsed the arbitrator’s approach and found that the award was reasonable. The court dismissed the review application and made the arbitration award an order of court. Duncanmec’s applications for leave to appeal were dismissed by the Labour Court and the Labour Appeal Court. However, leave to appeal was granted by the Constitutional Court.
The most important elements of the Constitutional Court’s decision are as follows:
What does this mean for employers?
It is important to note that the Constitutional Court was faced with an application to review the arbitrator’s award. As the court indicated, it was not its task to decide whether the arbitrator’s decision was correct or incorrect or whether the court agreed with the arbitrator’s approach. It was only required to consider whether the award was reasonable. The award passed this test. It is therefore perhaps not correct to state that the Constitutional Court agreed with the arbitrator’s approach.
However, the court expressed its views on at least three issues.
The first is its reiteration, in the first few pages of the decision, of the importance of combatting the scourge of racism in the workplace. The second is that, notwithstanding the importance of combatting racism, dismissal for racist conduct is not automatic. The third is that context is important in determining whether conduct was racist or not. This means that there could be circumstances where the singing of a song with derogatory content aimed at a specific racial group could constitute racist conduct.
Reviewed by Peter le Roux, an executive consultant in ENSafrica’s employment department.
employment associate [email protected] cell: +27 82 562 7876
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