Business Brief December 2011
An employee has a right not to be subjected to racial discrimination in the workplace. Failure by an employer to eliminate racist conduct in the workplace is unlawful.
In a recently reported Labour Court judgement the applicant relocated with his family from Durban to Brixton and moved into a residential complex provided by his employer that was shared with other employees.
The applicant is an Indian man and his fellow colleagues were predominantly white.
The applicant and his family were subjected to various forms of racial abuse from his white colleagues and their families. The employee laid a complaint to his station commander but the harassment continued.
The applicant's fellow employees were only reprimanded for their racial abuse after a new station commander was appointed. They were threatened with dismissal if they did not stop harassing the applicant, however the discrimination continued.
The applicant was verbally and physically abused, and his wife and children were subjected to the same racial abuse. The employer never took any active steps to put an end to the racism despite numerous and continuous complaints by the applicant.
There was a violent incident where the applicant was attacked and beaten with a sjambok by his colleagues while he was being harassed, and he defended himself with a knife and a minor injury to one of the employees resulted.
The applicant was the only one who was charged for bringing the reputation of the employer into disrepute. He was subjected to a disciplinary enquiry and he was found guilty of the charges levelled against him.
The court was called upon to decide on this issue as a result of this incident. In applying the law to the facts the court considered section 6(1) of the Employment Equity Act.
The Act prohibits discrimination against an employee in an employment practice on the basis of race.
Harassment in the workplace on the basis of one's race amounts to unfair discrimination, which is prohibited by law and the Constitution.
An employee, who contravenes the Employment Equity Act by harassing his fellow employees at work, must be reported to the employer and the employer must consult with the parties involved and take all the necessary steps to eliminate the alleged conduct.
An employer who fails to take active steps to put an end to the discrimination and harassment is acting unlawfully. An employer is expected to do everything reasonably practical to ensure that his employees do not contravene the Employment Equity Act.
The employees' conduct against the applicant was found to be overtly racist in nature and unfair.
The court also found that the fact that the harassment occurred outside working times was not an excuse for the inaction of the employer, because an employer may discipline his employees for misconduct committed outside the workplace if it has a bearing on the employment relationship, taking into account that the employees all live in the residential complex provided by the employer as a result of their employment.
The conduct of the employer was found to be unlawful in that he failed to take steps to stop the harassment. The applicant was awarded monetary compensation arising from the incident.
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