Mind your language in the workplace

Section 6(1) of the Employment Equity Act 55 of 1998 (“the Act”) provides that no person may unfairly discriminate, directly or indirectly, against an employee on the grounds listed in the Act, which include race. Section 6(2) of the Act provides that harassment of an employee is a form of unfair discrimination and is prohibited.

Section 60 (2) and (3) of the Act provide that an employer has an obligation to take steps to eliminate unfair discrimination, failing which the employer is deemed to have breached the Act.

In Biggar v City of Johannesburg (Emergency Management Services) [2017] 8 BLLR 783 (LC) Mr Biggar, the Applicant and former employee of the City of Johannesburg, the Respondent, alleged that over a seven-year period he and his family were continuously subjected to various forms of racial abuse, such as being called k*ffir, by his colleagues and their families. The alleged incidents of abuse had occurred at living quarters provided by the Respondent. The Applicant further alleged that despite him reporting the incidents of racial harassment, the Respondent failed to take steps to address the issue.

The Respondent denied the Applicant’s allegations.

In reaching its decision, the Labour Court considered the South African Revenue Service v Commission for Conciliation, Mediation and Arbitration [2017] 1 BLLR 8 (CC) judgment where the Constitutional Court stated that the courts should take a very firm and unapologetic stance to racism, especially with words as derogatory and hurtful as k*ffir.

In the Biggar case the Labour Court accordingly found that the Applicant was unfairly discriminated against, and that the Respondent failed to deal with the racial conduct as required by the Act. The Respondent was ordered to pay the Applicant compensation equivalent to 12 months remuneration, and his legal costs.

You can contact Hlengiwe Skosana, an associate in our Labour Law and Civil Litigation Department, for assistance with labour law disputes. Her e-mail address is [email protected], and her telephone number is 031 536 7500.