It is trite law that the employer bears the responsibility for the unlawful acts committed by its employees in the scope of their employment, also referred to as vicarious liability. This means that if an employee discriminates or harasses another employee, the other employee may sue the employer for damages. In these instances, the employer need not be at fault in any way, but the unlawful conduct of the employee is transferred to the employer.
Section 6(1) of the Employment Equity Act, 55 of 1998 (EEA), states that no person may unfairly discriminate directly or indirectly against an employee in any employment policy or practice on one or more grounds. Section 6(3) states that harassment of an employee is a form of unfair discrimination that is prohibited on any one or a combination of grounds of unfair discrimination listed in subsection (1).
Section 60 of the EEA, creates a form of vicarious liability of employers for the discriminatory acts of its employees.
In terms of section 60, if it is alleged that an employee, while at work, discriminates against a co-employee, the alleged conduct must immediately be brought to the attention of the employer, who in turn must take all necessary steps to eliminate the alleged conduct. If the employer fails to take the necessary steps and it is proved that the employee has discriminated against a co-employee, the employer will be held equally liable for the discrimination. However, if the employer can prove that it did all that it could to ensure compliance with the Act, the employer will then be able to escape liability.
The arm of the employer’s liability may be extended even further as established in Ntsundu v Three Cities Inn on the Square (Unreported WECT13367-14), where a hotel cleaner claimed that she was sexually harassed by guests when cleaning the male toilets. The Commissioner found that the employer can only be found liable for failing to ensure a working environment free of sexual harassment if it is aware of the sexual harassment but fails to take appropriate steps to address the situation. In this matter, it should be noted that the employee alleged to be sexually harassed by guests and not the employer or a colleague but this, however, does not indemnify the employer of carrying out its responsibility to ensure a workplace free of fear of unfair discrimination.
In Biggar v City of Johannesburg, Emergency Management Services  6 BLLR 577 (LC), it was held that the employer failed to take adequate steps to prevent the employee from being subjected to racial harassment by certain employees within the fire station complex. This conduct constitutes unfair discrimination in terms of section 6 (1) of the EEA and the employer was accordingly held responsible even though the incidents occurred outside of working hours.
Employers should, therefore, take steps in advance, to be pro-active in the elimination of unfair discrimination and not simply sit back and wait to be informed of alleged discrimination before doing something. The absence of effort in anticipation of discrimination may well lead to the employer facing liability. Employers need to, therefore, ensure that policies and practices are in place, for when discrimination is alleged.
Once the employer becomes aware of any form of discrimination or harassment, the employer must ensure that it consults with all the relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of the EEA. Employers need to ensure that these matters are dealt with internally and as soon as they become aware of the allegations.
Article by: Jodi-Leigh Erasmus
CEO Dispute Resolution Official – Port Elizabeth