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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))

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?