The EEA requires employers to take reasonable steps to prevent and respond to sexual harassment within the workplace. The Commission for Conciliation, Mediation and Arbitration (CCMA) has jurisdiction over complaints related to sexual harassment in the workplace. When an employee believes that they have been subjected to sexual harassment, they can refer their complaint to the CCMA.

Section 60 of the EEA provides that if the employer fails to take the steps necessary to deal with unfair discrimination or sexual harassment and it is proven that an employee has contravened the relevant provisions, the employer must also be deemed to have contravened that provision.

It is clear to see that the EEA protects employees from sexual harassment in the workplace. However, where does the employer’s responsibility end?

In the recent CCMA matter of JAMAFO obo Annekie Pieterse v Pick n Pay Retailers, the applicant had referred a matter of unfair discrimination against her employer. She alleged that an employee of a sub-contractor to the employer had sexually harassed her. The employee is employed as a security guard by the company for whom the respondent has a service level agreement to provide security services.

The respondent raised a jurisdictional point in limine, arguing that the respondent cannot be held liable in terms of section 60 of the EEA because it is not the employer of the employee who allegedly harassed the applicant. Section 60 is clear; the “employer” of the employee who allegedly committed an act of unfair discrimination will be held vicariously liable.

The commissioner referred to Shoprite Checkers (Pty) Ltd v Samka and Others [2018] 9 BLLR 922 (LC), where the employee alleged that a customer called her a racially offensive term and sought relief at the CCMA against her employer. One of the grounds on which she relied was unfair discrimination because the customer uttered a racially offensive term to her. The Labour Court held that Section 60 of the EEA envisages that if an employee, while at work, discriminates against another employee, the employer is liable if it does not take the necessary steps to eliminate racist conduct.

In Makoena v Garden Art (Pty) Ltd [2008) 5 BLLR 428 (LC) (2008) 29 ILJ 1196 (LC), the Court noted that an employer would only be held liable if the following requirements are met:

  1. The conduct must be an employee of the employer;
  2. The conduct must constitute unfair discrimination;
  3. The conduct must take place while at work;
  4. The alleged conduct must immediately be brought to the attention of the employer;
  5. The employer must be aware of the conduct;
  6. There must be a failure of the employer to consult all relevant parties or to take the necessary steps to eliminate the conduct or otherwise to comply with the EEA; and
  7. The employer must show that it took all the reasonably practicable steps to ensure that the employee would not act in contravention of the EEA.

Considering the abovementioned case law, the commissioner ruled that Section 60 of the EEA applies in cases of conduct by an employee of the employer. All the Courts have repeatedly stipulated that. In the Shoprite case, the Labour Court held that as deplorable as the customer’s conduct was, the employer cannot be held liable for her conduct against the employee in Section 60 of the EEA. The commissioner ruled that the applicant’s application for relief was dismissed.

It is still essential for employers to take the necessary steps to protect their employees from harassment in the workplace, irrespective of who the perpetrators may be. However, the Courts have ruled that although employers have a duty to create a safe workplace for employees, they cannot be held liable for the actions of someone they do not employ. In these circumstances, there are other avenues of relief for the aggrieved employee.

Article By: Aletta Eksteen
Dispute Resolution Official – Cape Town