Calling Out Racism At Work: Lessons From The Labour Appeal Court’s Qomoyi Judgment

Accusations of racism in the workplace are among the most sensitive and volatile issues employers and employees can face. In South Africa, where history, power and inequality remain deeply intertwined with working life, such allegations carry real emotional and legal weight. The Labour Appeal Court’s (“LAC”) judgment in Commercial Stevedoring Agricultural and Allied Workers Union obo Vuyani Qomoyi v CCMA and Others (“Judgment”),  squarely confronts this terrain.

At its core, the case asks a deceptively simple question: does calling a manager a  “racist” automatically amount to racist misconduct justifying dismissal? The LAC’s answer is an emphatic no, but the reasoning, implications and limits of that answer deserve careful examination.

Key facts

Mr Vuyani Qomoyi was employed as a general worker at Namaqua Wines (“Namaqua”), a major wine producer in the Western Cape. He also served as a shop steward for  the Commercial Stevedoring, Agricultural and Allied Workers Union (“CSAAWU”).

On 3 August 2021, Mr Qomoyi was summoned by the bottling manager, Mr Meyer, to attend a meeting at the HR office. On arrival, Mr Qomoyi witnessed a black employee being summarily informed that he had been dismissed. Mr Qomoyi had not been involved in any preceding disciplinary process, which he believed was unfair. A heated exchange followed. In the course of protesting the dismissal, Mr Qomoyi repeatedly accused Mr Meyer of being a racist as he uttered words to the following effect: “you are a racist, stop being a racist you are firing black people.” The incident was recorded on video. Namaqua responded by issuing allegations of gross insubordination, displaying racist behaviour, refusal to follow instructions and breach of trust against Mr Qomoyi followed by a discplinary hearing. The external chairperson found him guilty of insolence (a lesser form of charge one), for which he recommended a final written warning, and of displaying racist behaviour, for which he recommended dismissal. Namaqua dismissed Mr Qomoyi on 15 October 2021 solely for displaying racist behaviour. Both the CCMA commissioner and the Labour Court found the dismissal to be fair, and the matter eventually reached the LAC on appeal.

Key legal principles

The Judgment is anchored in the Constitutional Court’s decision in Rustenburg Platinum Mine v SAEWA obo Bester (“Bester Judgment”). That Bester Judgment established, amongst other things, that the mere use of racially charged words does not automatically amount to racism. Instead, the courts must apply an objective test: whether a reasonable, objective and informed person, having regard to context, including South Africa’s history and workplace power dynamics, would perceive the words as racist or derogatory. Crucially, the test is not solely about how the recipient subjectively felt, nor about whether the words were rude or hurtful; the enquiry must not begin from a presumption that the context is neutral and South Africa's historical and societal context must be considered.

The LAC held that both the CCMA commissioner and the Labour Court failed to apply Bester  test correctly as the commissioner treated Mr Qomoyi's utterance as a proven "racist tirade" from the outset and then devoted his analysis to rejecting the employee's justifications (effectively reversing the onus of proof imposed on the employer by section 192 of the LRA) and the Labour Court compounded the error by attempting to apply the Bester test itself without first setting aside the arbitration award, as required by the Labour Relations Act. Both tribunals also placed heavy reliance on the Labour Court’s decision in NCP Chlorchem (Pty) Ltd and others judgment (“NPC Judgment”), a pre-Bester Labour Court decision which suggested that accusing someone of being a racist is itself a profoundly serious form of misconduct. The LAC rejected that approach as inconsistent with the Constitutional Court's contextual framework.

Analysis of the Judgment

The Judgment has some important take aways. Its central finding, that the CCMA commissioner ignored binding authority and failed to apply the Bester test, is legally sound and provides a firm basis for setting aside the CCMA award. The LAC’s insistence that words must be assessed in context, including South Africa's painful history of racial oppression, guards against the kind of reflexive, mechanistic approach to racial speech that the Chlorchem Judgment had encouraged. The procedural clarity is also welcome as the LAC correctly identified that a review court may not augment an arbitration award by determining issues the commissioner failed to consider, without first setting the award aside.

That said, aspects of the Judgment may invite criticism. The LAC’s conclusion that Mr Qomoyi was "incapable of staking supremacy" over Mr Meyer, and that it was "inconceivable" he could aim at devaluing a white manager, risks introducing a categorical rule based on racial identity rather than a genuinely fact-specific analysis. The Bester test is meant to be objective and context-dependent, not predetermined by the racial identities of the parties. By suggesting that historical power dynamics effectively preclude a finding of racist behaviour where the speaker is a member of a previously disadvantaged group, the LAC creates uncertainty for future decision-makers. It leaves open the question of whether the same reasoning would apply if the facts were different or if the roles were reversed. More importantly, the Judgment arguably underplays an important distinction: conduct that is not racist may still be misconduct. The confrontation involved raised voices, repeated accusations and a public challenge to managerial authority. If dismissal for racism were unsustainable, the LAC could have more clearly acknowledged that employers remain entitled to discipline employees, who act in a disruptive or disrespectful manner, provided the misconduct allegation is properly framed and proportionate.

On the positive side, the Judgment makes an important contribution to the development of labour law by reinforcing that allegations of racism in the workplace require careful contextual analysis rather than automatic condemnation. It provides a procedural roadmap for commissioners and review courts, and it firmly establishes that the pre-Bester approach in the Chlorchem Judgment, which treating any accusation of racism as inherently serious misconduct, is no longer good law.

Key takeaways for employees and employers

For employees, the Judgment is a reminder that context is an important factor. Speaking out against perceived unfairness (especially if a racial dynamic is at play), even in strong terms, does not automatically amount to racist misconduct. However, it should not be read as a licence to abandon workplace decorum. How concerns are raised remains important, and employees are still expected to act responsibly. Words uttered in the heat of the moment, particularly when responding to perceived injustice or unfairness, will be assessed objectively and in light of the surrounding circumstances, not in isolation.

For employers, the message is equally clear. Before disciplining any employee for alleged racial misconduct, the Bester test must be applied. This means conducting an objective, contextual assessment of whether the words in question would be perceived as racist by a reasonable, informed person, not simply reacting to the emotional impact of the words themselves. Importantly, employers should frame disciplinary allegations with careful precision. Allegations must be grounded firmly in conduct that can be substantiated by evidence, rather than conjecture or emotive characterisation. Overstated or inaccurately framed allegations not only undermine procedural fairness but also expose the employer to legal challenge and adverse findings.

Ultimately, the Judgment reinforces a central theme in South African labour law: fairness is not always a straightforward formula. It demands engagement with the facts, is contextual, proportional and grounded in reason.

*Reviewed by Peter le Roux, Executive Consultant in the Employment Practice