This was the unanimous judgment of the Constitutional Court on Thursday following a labour dispute after the dismissal of nine employees by Germiston-based manufacturing company Duncanmec for singing a struggle song with “racial lyrics” during a strike.

During a strike between April 30 and May 2, 2013, the nine workers were filmed singing a well-known struggle song with lyrics that translate to “climb on the rooftop and shout that my mother is rejoicing when we hit the boers”.

The employees were dismissed after being found guilty of participating in unlawful strike action and for singing the song.

Duncanmec found the employees’ conduct had irreparably eroded the relationship of trust between it and the employees.

The matter was brought before the bargaining council, where an arbitrator found that the employees had shown remorse and that, while the song could be considered offensive, there was a need “to differentiate between singing the song and referring to someone in racist language”.

The Labour Court upheld a decision by the bargaining council that the workers be reinstated, ruling that the strike was short-lived and not violent and that the song could not be seen as misconduct.

Handing down judgment on an application for leave to appeal against the Labour Court’s ruling, the Constitutional Court dismissed the appeal.

“The Constitutional Court remarked that persistent instances of racism in the workplace were becoming worrisome and that, although the new constitutional order could hold people accountable for racist conduct, it could not by itself make people stop being racist. DM