In July 2016‚ the Labour Court dismissed Duncanmec’s application to review the arbitrator’s award. The Labour Court said it was not an unreasonable conclusion that the song was a popular struggle song and that it was unfair to dismiss the employees for singing it‚ although it may have offended some managers‚ particularly white managers.
The Labour Appeal Court later dismissed the company’s appeal against that finding. Duncanmec then approached the Constitutional Court.
Sean Snyman‚ for Duncanmec‚ told the court on Thursday that there had been a workplace dispute followed by a protest during which reference had been made to the race of the employer.
“Dismissal should follow unless exceptional circumstances exist. In this case‚ exceptional circumstances do not exist‚” Snyman said.
Snyman said the phrasing of the song‚ which referred to hitting a white person‚ should not be justified more than 20 years into democracy.
Deputy Chief Justice Raymond Zondo asked whether the employer had expressed in its disciplinary code that the singing of such songs would be regarded as misconduct with dismissal as a sanction.
Snyman said there was no need to write everything down.
The National Union of Metalworkers of South Africa (Numsa)‚ on behalf of the employees‚ said the arbitrator was not required to determine whether the singing of the song by its members amounted to hate speech.
Chris Orr‚ for Numsa‚ said the arbitrator was required to determine whether the employees had committed misconduct‚ and if so‚ whether such misconduct warranted dismissal.
“The arbitrator in this matter visited a difficult sanction‚ a nine-month unpaid sanction on the employees. She said they must take a responsibility for singing that song. This (sanction) was not merely a slap on the wrist‚” Orr said.
The court reserved judgment.