|
Category:
Insurance
News /
Life
Insurance /
April 2006
Old Mutual to pay compensation
for racial slur
Life
assurer Old Mutual was on Thursday ordered to pay a yet-to-be-determined
amount of compensation to a black employee labelled a "kaffir" by a
colleague.
"At the heart of this matter lies a view, shared by far too many people,
that the word 'kaffir' is not as hurtful as some others [Africans in
particular] would have it," Labour Court Judge Elna Revelas said in a
ruling handed down in Cape Town.
Old Mutual had contested a claim by the employee, Xolile Finca, and the
South African Transport and Allied Workers' Union, that it failed to
take proper action against Jenny Burger, the woman responsible for the
slur.
The complaint stemmed from an incident in 2003 in which Burger allegedly
complained to a supervisor when desks in their open plan office in Cape
Town were being rearranged: "Why are you putting me next to the kaffirs?"
Burger, who was initially given only a verbal warning, was dismissed
months later, but then reinstated on appeal.
It seemed "quite clear" at one point in the saga that Old Mutual was not
going to take up the cudgels on behalf of a black employee who was the
victim of a racist insult, Revelas found.
"Further, the attitude adopted by management then sent a message that
employees who insulted their fellow employees in this way may expect a
rap over the knuckles, and then only when dissatisfaction was expressed
or a trade union becomes involved."
Finca was justifiably angry and hurt. "He deserved far better treatment
than he had received, by way of addressing his problems", she said.
"Instead, he observed how the perpetrator was protected over many
months, only to be reinstated in the end. In my view, the first
respondent's failure to protect Mr Finca amounted to direct
discrimination.
"I gained the strong impression in this matter that the incident was
regarded by some as a storm in a tea cup which would soon blow over, as
long as people did not make too much of a fuss about it.
Revelas found that Burger was not the only guilty party in the incident,
but that her supervisor Barbara van Zyl and managers Karl Parks and Paul
Rist "and everyone who protected her" had a share in the discrimination.
Though she declined for technical reasons to make an order that would
effectively mean Burger's dismissal, Revelas instructed Old Mutual to
deal with Burger's situation "in a firm manner that would reflect its
clear intention to get rid of racism in the workplace".
She noted undisputed evidence that Old Mutual had done much by way of
training and other means to eradicate racism, and cited examples of Old
Mutual managers who were sensitive and had dealt with the Finca issue
"admirably".
"The matter was not so much concerned with policy on racism, as it was
concerned with one specific breach of that policy.
"In my view, that breach will be adequately addressed by ordering the
first respondent [Old Mutual] to pay compensation to the aggrieved
person who suffered under the breach."
By agreement between the parties, the amount of compensation would be
decided in different proceedings. Revelas ordered Old Mutual to pay the
costs of the case.
Expressing his pleasure at the ruling, Finca said: "I knew that getting
the backing from the Constitution of this country, I will win this case.
I'm happy that the judge showed the South African public that it is an
insult, it is unconstitutional, to allow a person to call you a kaffir,
it is unconstitutional to demean another person.
"It is not my victory, although I'm the one who pursued this case in
court. I was doing it for other people to see we don't have to keep
quiet as if nothing has happened."
There was no way that, after winning their struggle for liberation,
black people could be told "you didn't win, you are still a kaffir. I
didn't want to accept that".
The post traumatic stress, psoriasis, and depression he had experienced
since the incident would have to be taken into consideration in
determining compensation, he said.
"I was on the verge of committing a mass killing. I was on the verge of
taking my own life," he said.
Old Mutual was still considering what steps to take next, but would
respond to the Labour Court within the required period, it said after
the ruling.
"In the meantime, we believe that we have learned some important lessons
from the case," said spokesperson Stephen Bowey.
"We have used the incident to emphasise again, to all employees, that
any form of racism is unacceptable and will not be tolerated," he said.
"We have tightened our disciplinary procedures to ensure that anyone
guilty of racism will be dismissed.
"We have appointed an independent expert who is conducting an assessment
of our policies procedures and practices in dealing with transformation,
diversity, and racism.
"We believe we are a stronger company as a result, and that the lessons
learned will be of benefit to all companies in South Africa today." -
Sapa
 |
