On 8 November 2016 the Constitutional Court handed down a unanimous judgment in the matter of . The Constitutional Court judgment was the culmination of an eight-year journey in which SARS sought to vindicate its decision to dismiss Mr Jacobus Kruger for his use of the "K-word".
Kruger was accused of using the "K-word" on two separate occasions with reference to his team leader. SARS summoned him to attend a disciplinary enquiry. Kruger pleaded guilty to the charges against him. An external chairperson imposed a sanction of a final written warning valid for six months, suspension without pay for ten days and a requirement that Kruger submit himself to counselling.
SARS aggrieved with the sanction substituted that sanction with dismissal. Kruger challenged his dismissal at the CCMA. The CCMA arbitrator found that Kruger’s dismissal was unfair because the applicable collective agreement prohibited SARS from overruling the sanction. The arbitrator ordered Kruger's reinstatement.
SARS unsuccessfully challenged the arbitration award in the Labour Court and the Labour Appeal Court. The courts held that an employer may not unilaterally substitute a decision of the chairperson of a disciplinary enquiry, to which final decision making authority had been assigned.SARS appealed to the Constitutional Court. The basis of SARS’s argument before the Constitutional Court was that the arbitrating commissioner's order of reinstatement was a decision that no reasonable decision maker could have made in the circumstances. SARS maintained that Kruger’s racist conduct was destructive of the relationship of trust and confidence between an employee and a public sector employer in a constitutional democracy, and rendered Kruger's continued employment at SARS intolerable.
The Constitutional Court agreed with SARS and upheld its appeal. In doing so, the court unequivocally and in no uncertain terms condemned Kruger's racist conduct and held that such conduct must be met with a firm response by the courts.
The Constitutional Court in arriving at its decision reaffirmed the following important principles:
- Overriding constitutional considerations justify the non-enforcement of peremption.
- Racism in the workplace constitutes serious misconduct.
- After concluding that a dismissal is unfair, the arbitrating commissioner is required to take into account the provisions of section 193(2) of the Labour Relations Act in determining whether reinstatement is the appropriate remedy in each particular instance. In doing so, the arbitrator is required to consider the seriousness of the misconduct and its potential impact in the workplace.
- An arbitrating commissioner is required to give reasons for ordering reinstatement in circumstances where the employer has contended that continued employment would be intolerable. The commissioner is also required to consider whether the employee's continued employment is tolerable and if so, on what basis.