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
