Despite South Africa transitioning into a democracy 27 years ago, discrimination often rears its ugly head in South African society which is frequently reported by media houses and is received by the public with the sensationalism that it deserves.  The Employment Equity Act 55 of 1998 was drafted with the noble intention of eradicating unfair discrimination and harassment in the workplace by providing employees with recourse if they find themselves discriminated against in the workplace.


The Employment Equity Act is not only designed to protect employees, but employers too.  Consider for example a disgruntled employee who has been dismissed for misconduct, who thereafter refers numerous frivolous and vexatious cases to the CCMA, typically it has been the experience of Consolidated Employers Organisation that employees refer an unfair discrimination case when no reports were ever made to the employer complaining of unfair discrimination.  One may ask, how does the Employment Equity Act safeguard employers in this regard?


Firstly, section 6 of the Employment Equity Act prohibits unfair discrimination, for example, based on age, race, sex or marital status to name but a few.  An employee must prove that there was discrimination, whether direct or indirect.  Furthermore, the employee must prove, in terms of section 60 of the Employment Equity Act that the discrimination was reported to the employer who did not take any steps to address the discrimination.  If it is proved that the employer knew of the discrimination and did nothing to address the complaint, the employer will be complicit in the discrimination and will be liable for compensation.


It is noteworthy to mention, that an employee must refer a case of unfair discrimination within six months of the alleged discriminatory conduct.  An employee cannot wait a lengthy period and then as an afterthought refer a case against the employer.  With regards to when an employer will be held liable under the Employment Equity Act, the case of Potgieter v National Commissioner of the SA Police Service and Another (2009) 30 ILJ 1322 (LC) which dealt with sexual harassment as a form of discrimination, requires that in order to prove that an employer is liable in terms of section 60 of the Employment Equity Act an employee must prove that :

  • The sexual harassment/discrimination was committed by another employee.
  • The sexual harassment constituted unfair discrimination.
  • The sexual harassment/discrimination took place at work.
  • The alleged sexual harassment/discrimination was immediately brought to the attention of the employer. The employer was aware of the incident of sexual harassment/discrimination.
  • The employer failed to consult all relevant parties or to take the necessary steps to eliminate the conduct. If the employer did, no liability arises in terms of the Employment Equity Act.
  • The employer failed to take all reasonable and practical measures to ensure that its employees did not act in contravention of the Employment Equity Act.


Although the Potgieter case dealt with sexual harassment, the same principles will apply to other forms of unfair discrimination.  It is imperative that employers have a comprehensive policy that deals with unfair discrimination and harassment in the workplace.  Not having a policy could have serious ramifications for the employer at the CCMA.  On the same token, if an employee does not report the discrimination to the employer, it cannot be held liable under the Employment Equity Act.


Article by: Shakti Jainarain

Senior Dispute Resolution Official – Durban