Landmark ruling: Don’t play race card at work
Judges urge against 'false accusations of racism' following ugly spat between two Legal Aid staffers in the Northern Cape
Don’t play the race card when dealing with workplace grievances.
This was the caution issued recently by the Labour Court of Appeal following a legal spat between Legal Aid Board Western and Northern Cape boss Cordelia Robertson and Kimberley-based Justice Centre executive Vincent Mayisela.
The root of Mayisela’s anger was a low performance score (54%) that Robertson had given him. While Robertson gave him an opportunity “to persuade her otherwise”, Mayisela refused this.
It resulted in Mayisela being charged and found guilty of gross insubordination, two hearings before the CCMA – the final one of which resulted in Mayisela’s dismissal – and his appeal to the Cape Labour Court, which ordered his reinstatement.
The Legal Aid Board, in turn, appealed to the court of appeal which has now ruled that the CCMA commissioner had been correct and his dismissal was fair.
“Unjustified allegations of racism against a superior in a workplace can have very serious and deleterious consequences,” Acting Judge John Murphy said in a ruling two weeks ago, with Judge President Basheer Waglay and Judge Roland Sutherland concurring.
“Employees who allege tacit racism should only do so if there is persuasive objective information, in accordance with grievance procedures established for that purpose.”
The matter before them exposed a history of acrimony between Robertson and Mayisela stemming from the performance rating.
In an e-mail asking for reasons in writing, he wrote: “I think I am being vilified and this has been coming on for a very long time now.
“I don’t feel safe in my work anymore as an African Manager in this region, and I intend taking matter up (sic) with Management and the Portfolio Committee.
“I honestly think that Africans are being vilified in the region under the coded name of poor performance.”
He spurned a further offer to meet.
“I am aware of the grievance policy but matters that have Constitution implications can be raised with constitutional bodies, and there is nothing that bars me from writing letters to the public protector, parliament or Human Rights Commission. I am completely free to do so as a citizen of this country.”
This was not the first time he had refused to attend a meeting with Robertson.
After he complained about Robertson to Legal Aid head Brian Nair, and Robertson asked for a meeting, he responded: “I will think about it.”
In another e-mail he told her he would tell her “things she may not want to hear”.
When Robertson put her foot down and set a date, Mayisela alleged she was “intimidating and harassing” him. The judges said Mayisela had clearly implied that Robertson, who is coloured, was racist.
At the CCMA hearing, Mayisela stood by his allegation, saying that six of the seven African managers in the Northern Cape region had received negative performance assessments.
But the commissioner said this was not the point: that the issue was not “to dissect the politics of the employer’s region” but whether it was appropriate for Mayisela to have made the accusation to his superior in the manner he did.
While the Labour Court was sympathetic to Mayisela, the appeal judges said this again was missing the point.
“False accusations of racism are demeaning, insulting and an attack on dignity, more so when the person attacked, by reason of a previously disadvantaged background, probably has suffered personally the pernicious effects of institutional and systemic racism,” they found.
Beyond that was no evidence, as Mayisela stated in an e-mail to Nair, that the “situation of racism in the Western Cape will explode, people are just afraid to talk and rather channel their advances to me”.
“There were a number of e-mails in which Mayisela threatened to take action against Robertson unless she stopped doing what was upsetting him ... in a sense this is a playground tactic.”