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))

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