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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
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?