Is singing 'hit the boer' a dismissible offence?
Concourt grapples with dismissal of workers for singing an old struggle song
Should the singing of a struggle song that “rejoices” at the prospect of hitting white people justify a dismissal from your job?
This is the question which faced the Constitutional Court justices on Thursday as they heard an appeal by Alberton company Duncanmec, that manufactures refuse-handling equipment.
On April 30 2013, employees were unhappy about some conditions regarding overtime and embarked on an unprotected strike at the employers’ premises. The strike lasted for a few hours after lunch and the workers returned to work on the next working day. But the eight workers were dismissed.The workers were not dismissed because of the unprotected strike‚ but rather for singing a struggle song in isiZulu that‚ when translated‚ means: “Climb on top of the roof and tell them that my mother is rejoicing when we hit the boer.”
The workers successfully challenged their dismissal at the Metal and Engineering Industries Bargaining Council in 2014. The arbitrator ordered their reinstatement, but only allowed them back-pay of three months instead of the 12 months’ pay that was due to them.
Unhappy with this decision, the employer reviewed the decision of the arbitrator before the Labour Court.
The employers argued at the Labour Court that any reference to harming or killing the “boer” constituted hate speech and as a result had to be racist.
The employer accused the arbitrator of seeking to steer away from the racist and hate speech context by finding that, historically, the song sung by the workers was a struggle song.
Duncanmec said the reasoning by the arbitrator could not serve to justify the song in an employment relationship 20 years after the advent of democracy.
The Labour Court dismissed Duncamec’s application in 2016.
It said it was not an unreasonable conclusion by the arbitrator that the song was a popular struggle song and that it was unfair to dismiss the employees for singing it, although it may be offensive and hurtful to some management, particularly white managers.
The Labour Appeal Court refused to hear Duncanmec’s appeal last year, which forced the company to appeal to the Constitutional Court.
On Thursday, Duncanmec’s lawyer Sean Snyman said the court should adopt a position that if racism is proved in the workplace‚ dismissal should follow as a result unless there are exceptional circumstances.
Snyman said there was a workplace dispute which was followed by a protest which included a reference to the race of the employer.
“Dismissal should follow unless exceptional circumstances exist. In this case, exceptional circumstances do not exist,” Snyman said.Snyman said the phrasing of the struggle song, which referred to the hitting of a white person, should not be justified more than 20 years into democracy.
However, the National Union of Metalworkers of South Africa (Numsa), on behalf of the employees, said the arbitrator was not required to determine whether the singing of the song by its members amounted to hate speech.
Chris Orr, for Numsa, said the arbitrator was required to determine whether the employees had committed misconduct and, if so, whether such misconduct warranted dismissal.
“The arbitrator in this matter visited a difficult sanction, a nine-month unpaid sanction on the employees. She said they must take a responsibility for singing that song. This (sanction) was not merely a slap in the wrist,” Orr said.
The court reserved judgment.
After the hearing, Numsa expressed concern that the employees had not been back to work since the arbitrator ruled in their favour in 2014, because of the series of appeals by the employer.
Numsa spokesperson Phakamile Hlubi-Majola said the employers had limitless pockets to litigate endlessly, hoping the workers would give up.
“We should not be here. We are not surprised they are doing this,” Hlubi-Majola said.