An employer is vicariously liable for wrongful conduct, albeit an act of sexual harassment or any other discriminatory conduct, towards an employee, which was committed in the course and scope of his/her employment or while engaged in any activity incidental thereto. The basis for this liability is founded on the notion that an employee is an extension of the employer. Consequent to a decision to employ, an obligation is imposed on the employer to create a workplace safe from any unfair discrimination. The difficulty arises when an employee does something outside the course and scope of his or her employment, which can nevertheless result in the employer being held liable in terms of section 60 of the EEA (Employment Equity Act). The section deals specifically with the liability of an employer in the case of discriminatory conduct by one or more employees, and provides that an employer can only be held liable in terms of the EEA for the conduct of its employee/s if the provision of this section is complied with. Section 60 reads:
- If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.
- The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.
- If the employer fails to take the necessary steps referred to in subsection 2, and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have that provision.
- Despite subsection 3, an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.
The employer can be held liable in terms of section 60 for the acts of discrimination perpetrated by one of its employees and by failing to take action with regard to the sexual harassment complaint.
The Labour Court set out the requirement for employer liability as follows:
- The sexual harassment complained of was committed by another employee;
- It was sexual harassment constituting unfair discrimination;
- The sexual harassment took place at the workplace;
- The alleged sexual harassment was immediately brought to the attention of the employer;
- The employer was aware of the incident of sexual harassment;
- The employer failed to consult all relevant parties, or take the necessary steps to eliminate the conduct; and
- The employer failed to take all reasonable and practicable measures to ensure that the employee did not act in contravention of the EEA.
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