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Article 52/2024

LabourEdge

What are the principles governing the vicarious liability of an employer for acts committed by an employee in breach of the EEA, in terms of s60 of the EEA?

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The principles extracted from Shoprite Checkers v JL (2022) 33 SALLR 15 (LC); (2022) 43 ILJ 903 (LC), Liberty Group v MM [2017] 10 BLLR 991 (LC), Potgieter v National Commissioner of SAPS [2009] 2 BLLR 144 (LC), Amathole District Municipality v CCMA (2022) 33 SALLR 49 (LAC); (2023) 44 ILJ 109 (LAC) and Solidarity obo Oosthuizen v SAPS (2023) 34 SALLR 80 (LC); (2023) 44 ILJ 882 (LC) are as follows:

  • such vicarious liability only exists when the following jurisdictional preconditions are met:
    • the conduct must have been committed by another employee
    • the conduct must constitute unfair discrimination (sex/gender, sexual orientation, etc)
    • the incident must have taken place at the workplace
    • the employer must have been unaware of the incident
  • there are two possible defences for an employer and the employer is not required to comply with both (Biggar v City of Johannesburg [2007] 8 BLLR 783 (LC)):

Defence 1 – s60(2) read with s60(3) of the EEA

  • the employer is required to consult with all relevant parties and take all necessary steps to eliminate the conduct and ensure compliance with the EEA
  • f the employer fails to do the above and it is proven that the employee contravened the EEA, the employer will be held vicariously liable for the conduct of the employee

Defence 2 – s60(4) of the EEA

  • if the employer can show that it did all that was reasonably practicable to ensure that the employee would not contravene the EEA, the employer will not be held vicariously liable
  • failure to comply with s60(4) does not render the employer liable for any acts of sexual harassment – it is a defence and not an independent legal obligation
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?