Warning, it may be the festive season and you’re inclined towards going with the flow!

labour-guideBy Saber Ahmed Jazbhay, Attorney and Labour Law Practitioner

And so you decide to throw caution to the winds and share a ‘rationally offensive “joke”’ via e-mail. Stop, think before you press the send button. You will, in all probability get fired. This is what happened to the applicant in Chetty v Toyota South Africa (Pty) Ltd and Others [2014] ZALCD 66 (19 November 2014).

To quote the learned judge “as the Applicant conceded that it was racially offensive, one might only add that it is also particularly crass and stupid and it is astonishing that the email was distributed with the apparent vigour that it was.”(at [4])

The “joke” that was disseminated was doubly offensive and insensitive from a gender stereotyping as well as racial perspective and, one can read into the words of the learned judge that in these times we need to be very careful so as not to offend people. What may have passed for normal in the past is no longer acceptable. The foundational principles of our Constitution are grounded in human dignity and therefore we need to be mindful that the Constitution is our grundnorm that enshrines human dignity at the highest level.

“Gender stereotyping” to quote the learned judge,” is, very often rooted in the traditional roles women have played in society and such rules may differ from culture to culture.” But racism was “different in that it is rooted not in traditional norms and culture, but in the degradation and dehumanisation of one racial group by another on arbitrary grounds and rises, more often than not, from the unfortunate realities of colonial conquest.” (at para [10])

What is pertinent is that “in the context of the social and political history of this country, racism is the more serious offence.”

And so Mr Chetty lost his job and he challenged the fairness of his dismissal in the Labour Court that found against him.

Particularly now, in the festive season when alcohol more than lubricates I sound this cautionary particularly when employers have a firm policy or rules in place against any offensive racial or gender stereotypical behaviour.

For more information please contact Saber Ahmed Jazbhay at 082 827 8666/ (031) 306 2784 (Office Hours) or email jazlaw@telkomsa.net

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