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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))

July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?