Labour court rules against racist owner of a dog called “Hitler”

The Labour Court in Cape Town has overturned a Commission for Conciliation, Mediation and Arbitration (CCMA) ruling that reinstated a team leader, finding his comments were racist. Illistration: Lisa Nelson

• The Labour Court has set aside a decision reinstating a Capita South Africa team leader dismissed over racist remarks to colleagues.
• The court ruled that Shaun Williamson’s comments, including remarks about a dog trained to bite African people, were racist and an assault on colleagues’ dignity.
• Acting Judge Cecily-Ann Daniels found that the CCMA had failed to properly consider South Africa’s history of racial discrimination and had incorrectly concluded the employee had shown genuine remorse.

The Labour Court in Cape Town has confirmed that a call centre team leader, who was accused of racism in the workplace, was fairly dismissed.

Acting Judge Cecily-Ann Daniels, in a judgment handed down this week, reviewed and set aside a previous Commission for Conciliation, Mediation and Arbitration (CCMA) ruling re-instating Shaun Williamson to his position at Full Circle Contact Centre Services (trading as Capita South Africa).

The CCMA found that the comments to his colleagues were merely “insensitive” and Commissioner David Wilson ordered that his dismissal was substantively unfair and that he should be reinstated retrospectively with back pay.

Capita sought to review the decision in the Labour Court.

In her ruling, Judge Daniels said courts had repeatedly affirmed that racism in the workplace – a plague and a cancer in society – must be rooted out.

Setting out the background to the case, she said Williamson had been employed as a team leader in November 2019, responsible for about 15 call centre agents. In 2022, several team members had complained about his conduct, alleging he had made discriminatory remarks about female African employees.

He was subsequently charged with acts of discrimination on the listed grounds of race and gender and conduct unbecoming of a manager. The gist of the charges were that he had compared the abilities to multi-task of an African employee and a coloured employee.

He had told his team that they could not hold a meeting at his house, because his dog, Hitler, was trained to bite African people. He had then “found it funny” when he recounted an incident when his dog had chased an African child in the road.

He had also expressed discomfort at having to report to an African female team leader, and referred to a team member’s conduct as a “black thing”.

He was found guilty and dismissed in April 2023.

Later that year, he referred an unfair dismissal dispute to the CCMA.

Commissioner Wilson’s reinstatement ruling was based on his findings that Williamson had been “insensitive to the feelings of black people in his team” and that “insensitivity” was insufficient to warrant his dismissal.

Wilson also found that Williamson had shown remorse, and had apologised to the company and individual complainants.

In the Labour Court, Williamson filed his affidavit opposing the review out of time.

Judge Daniels refused to grant condonation for this, saying he had not properly explained the reasons for the delay, and the matter proceeded on an unopposed basis.

She said workplace racism required a firm and unapologetic response from the courts.

The test of what conduct was racist had to be determined objectively.

The CCMA had been wrong in equating racism to “insensitivity” which sanitised the conduct and treated it as innocuous.

“Assessed objectively, the conduct was racist and derogatory.

“Having regard to this country’s history, including the use of dogs against black people and the connotations of the name Hitler, any reasonable, objective and informed person would perceive this conduct to be racist and derogatory and to be an assault on the dignity of black members of the employee’s team.”

Judge Daniels said Williamson had conceded at the CCMA that mentioning the dog incident had been “offensive”. He had also conceded under cross examination that his comments about the dog had, as a fact, been racist or constituted racism.

But this had seemingly been ignored by the commissioner.

“Conduct of this nature threatens to take us back to our past and cannot be glossed over or accommodated or excused, as the commissioner did in this matter,” Daniels said.

This “mischaracterisation” had tainted the sanction inquiry.

The commissioner had failed to have regard to the history of racial discrimination and its impact. He had also erred in finding that Williamson had been remorseful, because the apology had only been tendered during the CCMA proceedings, months after he was fired.

She reviewed and set aside the CCMA award and substituted it with a finding that Williamson’s dismissal was fair.

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