Cashier awarded R75k over customer’s race slur loses it in court
CCMA ruled in her favour in k-word case, but her arguments come undone on appeal in labour court
A supermarket cashier who won a R75,000 compensation order against her employer after a shopper insulted her with the k-word has had the award overturned in court.
Bulelwa Samka went to the Commission for Conciliation, Mediation and Arbitration after an elderly customer at Shoprite in Fish Hoek, Cape Town, called her a “stupid k*****”.
She complained that store managers had contravened the Employment Equity Act by failing to take her seriously and by telling her: “The customer pays your salary.”
The commissioner awarded Samka compensation after deciding that the managers’ approach was “insufficient to address the racist abuse [the cashier] suffered, and that amounts to indirect racial discrimination”.
Shoprite successfully challenged the award in the Cape Town labour court, and now the labour appeal court has dismissed Samka’s appeal.
The three appeal judges also rejected the cashier’s appeal against a second CCMA finding that went against her. She said she had been defamed, victimised, bullied and subjected to emotional abuse by Shoprite staff, and that practices at the Fish Hoek store were racist towards black cashiers in general. But the judges said she had failed to produce proof.
You are a stupid k*****. That is what you are, I don’t know why you are sitting there, you don’t know what you are doing there.
Judge Dennis Davis said Samka, a part-time cashier, was insulted by a customer during a discussion in 2016 about a cash withdrawal.
The woman told her: “You are a stupid k*****. That is what you are, I don’t know why you are sitting there, you don’t know what you are doing there, you should go back to missionary.”
Samka said store manager Herman Beyleveld and stock administrator Diane Roberts offered her no assistance or understanding when she reported the incident.
“According to [Samka], Roberts adopted the view that [the customer] was a regular shopper who had patronised the store for at least 30 years, she knew that this customer would not be rude to the appellant and further ‘she pays your salary’,” said Davis.
Beyleveld had told CCMA commissioner Elridge Edwards: “That sounds like something I would say, that the customer pays our salary and we should not engage in an argument with the customer.”
Edwards awarded Samka compensation and said Shoprite did not take appropriate steps to prevent the misconduct from happening again, such as banning the customer from the store.
The company argued successfully in the labour court that under the Employment Equity Act, it could not be liable for the way a customer treated one of its staff.
Samka told the appeal court the act applied when an employer fails to provide a protective environment or to address a complaint of racist verbal abuse, even by a customer.
But Davis said the section of the act upon which the cashier based her argument was “clearly and unambiguously confined to specific relationships between employers and employees”.
He added: “An employer has no control over how a member of the public might behave in entering a store,” suggesting that Samka could sue the customer or take her to the equality court.