The Labour Court recently held that the dismissal of an employee for submerging the heads of subordinates in a fishpond as a disciplinary measure was substantially fair. The employee, Hendrik van Tonder — who also referred to himself as “The Terminator” — was responsible for supervising and disciplining several employees at Sibanye Stillwater’s Kloof Four Shaft.

Two black employees (the complainants) reported late for a safety meeting. As a disciplinary measure, Van Tonder gave them the choice of facing a formal charge of misconduct or submerging their heads in a fishpond located on the employer’s premises. The complainants chose the latter and the act was photographed and recorded by some of their colleagues.

Following this incident, the complainants lodged a formal grievance against Van Tonder. He was charged with “behaviour prejudicial to the maintenance of good order and/or behaviour unbecoming of a senior employee” for the incident.

After a disciplinary hearing, Sibanye dismissed Van Tonder. Aggrieved by his dismissal, he approached the Commission for Conciliation, Mediation and Arbitration (CCMA) alleging unfair dismissal. The conciliation was unsuccessful, leading to arbitration.

During the arbitration, evidence was presented both in favour of and against Van Tonder. Witnesses for Sibanye denied the existence of a tradition or practice of submerging employees’ heads in a fishpond as an alternative form of discipline. On the other hand, Van Tonder and his witnesses argued that such a practice had been a long-standing tradition at the employer. They provided instances where employees were submerged in the fishpond either as a form of discipline or celebration.

Some witnesses even testified that pictures of such incidents were displayed on notice boards and meeting rooms and that the management was aware of this tradition. The complainants testified that they felt humiliated, degraded and traumatised by the incident. They further elaborated on the effect the incident had on their mental health, leading them to consult with a social worker, a psychologist, and a psychiatrist, and even getting admitted to a mental health hospital.

Despite the presented evidence, the commissioner found Van Tonder’s dismissal to be both substantively and procedurally fair. The commissioner concluded that even if the “fishpond discipline” was a tradition, it was contrary to the employer’s rules, processes, codes and values. The commissioner also found that such a practice could infringe on the fundamental human rights of individual employees.

Aggrieved by the outcome, Van Tonder referred the matter to the Labour Court. The court held that a practice must be certain, uniformly observed for an extended period and reasonable to be recognised as law. The practice was not uniformly applied in the workplace, as some senior employees at the head office were unaware of it.

The Constitution enshrines the right to human dignity. Any act that is degrading or humiliating impacts this right. The practice of submerging employees’ heads in a fishpond, even if it was a tradition, is degrading and humiliating, and impacts the employees’ right to dignity.

Even though the complainants had been given the opportunity to choose between facing a formal charge of misconduct or submerging their heads, there was a power play that gave the complainants no choice but to agree to submerge their heads in the fishpond. Even if the “fishpond discipline” was a tradition, it was contrary to the company’s rules, processes, codes and values.

Van Tonder’s dismissal was therefore found to be both procedurally and substantively fair. Allowing, condoning and instructing employees to submerge their heads in the fishpond as an alternative to discipline is degrading, humiliating and impacted on their dignity.

Human rights and basic dignities 

It is interesting to note that the court utilised the concept of human dignity in two distinct ways.

First, the court considered that any workplace rule (in this case submerging the heads of subordinates in a fishpond as a disciplinary measure) had to respect the dignity of those affected thereby.

The court’s stance underscores the importance of ensuring that workplace practices, even those that might be seen as “harmless traditions” or “alternative disciplinary measures”, do not infringe upon the inherent dignity of employees. This is especially pertinent in a democratic society where the Constitution and labour laws emphasise the protection of individual rights and dignity.

Second, the court considered that the actions of the employee were sufficiently “unbecoming of a senior employee” to justify dismissal based on the impact of the employee’s conduct on the dignity of the complainants. As a senior employee, there’s an inherent expectation of upholding a higher standard of conduct, especially when dealing with subordinates. This is not just about adhering to workplace rules but also about setting a precedent for respectful and dignified treatment of all employees.

The court’s approach to human dignity in this case underscores the importance of ensuring that workplace practices and the conduct of employees, especially those in senior positions, align with the broader principles of respect, fairness and dignity.

Role of race

Nevertheless, the absence of race as a consideration in the case is striking. The court makes no direct reference to race as a factor in the case. In South Africa, with its history of racial oppression and discrimination, acts of domination and subjugation evoke memories of past racial humiliations.

The practice of submerging employees’ heads into a fishpond, especially in a context with historical racial tensions and power imbalances, can be seen as a product of a racialised workplace culture. Even if not explicitly racially motivated, the act can perpetuate and reinforce racial dynamics, power imbalances and historical traumas.

The court’s failure to consider race as a pertinent factor in cases is a glaring omission. Such an oversight not only neglects the deeply embedded racial hierarchies in South African society, but also perpetuates the erasure of racial experiences and histories.

By not adequately addressing the role of race, the court inadvertently upholds the status quo, reinforcing existing racial power dynamics and failing to challenge systemic racial injustices.

This critique underscores the need for a more nuanced and contextually aware approach to legal judgments that recognises the profound impact of race on the lived experiences of South Africans. DM