CSAAWU - CCMA arbitration proceedings - Labour Court - Cape Town - Dismissal - Racist utterances - Namaqua Wines
In this matter, SERI represents Mr. Vuyani Qomoyi, who dismissed from his place of employment at Namaqua Wines where he was employed as a general worker in August 2019. He later became a member and shop steward for Commercial Stevedoring Agricultural & Allied Workers Union (CSAAWU), representing the interests of workers amongst other duties.
On 3 August 2021, Mr. Qomoyi was called by Mr. Sybrandt Meyer, a bottling manager at Namaqua Wines, to the Human Resources office to serve as a witness the dismissal of fellow a fellow employee following disciplinary proceedings, in his capacity as a CSAAWU shop steward. Mr. Qomoyi as a shop steward protested the dismissal an accused Mr. Meyer of being a 'white racist'. As a result, Mr, Qomoyi was then charged with misconduct and was also dismissed on 15 October 2021 following a disciplinary hearing.
Mr. Qomoyi and CSAAWU challenged the dismissal before the Commission for Conciliation, Mediation and Arbitration (CCMA) but were unsuccessful. The dismissal was upheld as being procedurally and substantively fair. With SERI’s legal representation, Mr. Qomoyi and CSAAWU then launched an application for review in the Labour Court of South Africa, Cape Town, in May 2022 in terms of section 145 of the Labour Relations Act. The matter was eventually heard in February 2024.
SERI submitted that the CCMA and the Commissioner who handled the arbitration award committed misconduct on the basis the arbitration award relies on the premise that what Mr. Qomoyi’s said to Mr Meyer is inherently wrongful misconduct for which Mr. Qomoyi could be dismissed.
The Labour Court dismissed the review application with costs and upheld the dismissal. The Court found that the CCMA’s arbitration was not reviewable and that Mr. Qomoyi’s conduct was deserving of dismissal and justified and that the outcome of the arbitration was reasonable. The Court said the CCMA correctly found that there was a rule in place at the farm that racism was not tolerated and was a serious offence worthy of a dismissal even for a first offender, and that Mr. Qomoyi breached this rule, leading to disharmony in the workplace and a breakdown of the relationship between himself and other employees, particularly Mr. Meyer.
The Court held that calling another employee racist without just cause, truth and reasonable grounds constitutes serious misconduct and reveals that the person who makes the accusation is himself racist or displaying a racist attitude. The court also accepted that the enquiry must be based on how a reasonable observer must have perceived the utterances and that racist intent can be inferred from the actual words Mr. Qomoyi used, the absence of a justification for the utterances and the circumstances and manner in they were made. It concluded that if objectively viewed, Mr. Qomoyi’s utterances to Mr. Meyer were racist as there was no cause or reason to act as he did and that he was pressing home his own racist tendencies and conduct towards Meyer.