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Article 7/2023

In terms of s60 of the Employment Equity Act 55 of 1998 (‘EEA’), an employer may be vicariously liable for acts committed by an employee in breach of the EEA. In the above regard, the employer has certain obligations and failure to observe those obligations may result in the employer being deemed to have also contravened the EEA. With reference to the above:

  • what are the requirements for an employer to be found liable in terms of the EEA where a sexual
    harassment complaint has been raised?
  • what are the two possible defences that the employer may have in the above regard?

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In summary, the following requirements have to be met for an employer to be liable in terms of the
EEA, where a sexual harassment complaint has been raised:

  • the conduct must be committed by another employee
  • the conduct must constitute unfair discrimination (on the basis of sex, gender or sexual
    orientation)
  • the incident must have taken place at the workplace
  • the employer must have been unaware of the incident
  • the employer must not be in a position to successfully raise either of the defences as set out
    hereunder

(Shoprite Checkers v JL (2022) 33 SALLR 15 (LC), Liberty Group v MM [2017] 10 BLLR 991 (LC);
Potgieter v National Commissioner of SAPS [2009] 2 BLLR 144 (LC))

The employer has the following two possible defences and is not required to comply with both,
namely:

  • 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 conduct and comply with the EEA
    • if the employer fails to do the above and it is proven that the employee contravened the
      EEA, the employer is 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
    • this is a defence and not an independent legal obligation on the employer

(see, further, Grootboom v eThekwini Metropolitan Municipality (2021) 42 ILJ 2508 (CCMA))

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)?