Employment Newsletter

EMPLOYERS LIABILITY FOR DISCRIMINATION BY CUSTOMERS TOWARDS EMPLOYEES

The Labour Court was faced with an interesting question in the matter of Shoprite Checkers (Pty) Ltd v Samka & Others (2018) 9 BLLR 922 (LC).

THE FACTS

Ms Samka (“Samka”) was employed as a cashier at Shoprite Checkers. She alleged that the controllers and managers in the store victimised, bullied and harassed her because of her race and in retaliation to her having raised grievances against the store for their treatment of black cashiers. Samka further complained of an incident involving a customer who had referred to her as the “k-word”.

Samka then referred a dispute to the CCMA.

THE CCMA

There were 3 aspects to Samka’s referral:-

⦁ That Shoprite’s company practices in the workplace were racist towards black cashiers in general.
⦁ That she was being bullied and victimised because she had raised grievances against Shoprite.
⦁ That Shoprite had failed to protect her from the racist utterance by the customer and, in fact, condoned the customer’s action.

The commissioner at the CCMA found that the Shoprite had subjected Samka to unfair discrimination based on race because they failed to take further steps to prevent the incident from happening again. Samka was awarded R75,000.00 in compensation.

However, the commissioner found that there was insufficient evidence to prove the bullying and harassment claims.

Dissatisfied with the award, Shoprite took the decision on appeal to the Labour Court. Samka filed a cross-appeal stating that the CCMA had erred in finding that she had failed to prove that the bullying and harassment claims constituted unfair discrimination.

THE LABOUR COURT

The Court was, ultimately, faced with the same 3 questions that had been considered by the CCMA.

In dealing with the appeal, the Court evaluated section 60 of the Employment Equity Act 55 of 1998 (“EEA”) which deals with the liability of employers. S60 of the EEA states that:-

⦁ 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 contravened 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 Court held that on a plain reading of section 60 of the EEA, it is clear that this section only envisages liability of an employer if an employee, while at work, discriminates against another employee and the employer fails to take the necessary steps to eliminate the discriminatory conduct. The Court went further and referred to the decision of Mokoena v Garden Art (Pty) Ltd (2008) 5 BLLR 428 (LC), which outlined the requirements for an employer to be held liable, namely:-

⦁ The conduct must be by an employee of the employer;
⦁ The conduct must constitute unfair discrimination;
⦁ The conduct must take place while at work;
⦁ The alleged conduct must immediately be brought to the attention of the employer;
⦁ The employer must be aware of the conduct;
⦁ There must be a failure by 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
⦁ The employer must show that it took all that was reasonably practicable to ensure that the employee would not act in contravention of the EEA.

It is clear from the above that an employer’s liability only extends to employees and not to the actions of customers. Whilst the Court held that the comment made by the customer to Samka was “one of the worst racial insults in our country” that Shoprite could not be held liable in terms of section 60 of the EEA. Samka would not have been without remedy, however, as she would be able to pursue a civil claim against the customer (e.g. delict) or an unfair discrimination claim in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“PEPUDA”).

Shoprite was, therefore, successful with their appeal.

That left the issue of the cross appeal by Samka. In assessing the cross appeal, the Court looked at sections 6(1), 6(3) and 11 of the EEA.
Sections 6(1) and (3) of the EEA provide:-

“(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family
responsibility, ethnic or social origin, colour, sexual orientation, age,
disability, religion, HIV status, conscience, belief, political opinion,
culture, language, birth or on any other arbitrary ground.

(3) Harassment of an employee is a form of unfair discrimination and is
prohibited on any one, or a combination of grounds of unfair
discrimination listed in subsection (1).”

Section 11 provides:-
“(1) If unfair discrimination is alleged on a ground listed in section 6 (1),
the employer against whom the allegation is made must prove, on a
balance of probabilities, that such discrimination—
(a) did not take place as alleged; or
(b) is rational and not unfair, or is otherwise justifiable.
(2) If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that—
(a) the conduct complained of is not rational;
(b) the conduct complained of amounts to discrimination; and
(c) the discrimination is unfair.”

In assessing the abovementioned sections, the Court came to the conclusion that these provisions mirrored the original test for discrimination originally set out in Harksen v Lane N.O 1998 (1) SA 300 (CC), namely answering the question of whether the differentiation amounts to unfair discrimination.

Apart from focusing on the requirements for proving unfair discrimination, the Court also cautioned complainants against making bald allegations and made it clear that they must clearly set out that harassment amounts to unfair discrimination.

Samka’s cross appeal was dismissed.

This is an important judgement for employers to take note of. Whilst not everyone might be in a workplace where there is customer interaction, this judgement clearly outlines the evaluation the courts will use in determining employer’s liability in terms of section 60 of the EEA.

Philela Tantsi
Candidate Attorney

DOWNLOAD THE EMPLOYMENT UPDATE VOLUME 6

Case referred to:
Shoprite Checkers (Pty) Ltd v Samka & Others (2018) 9 BLLR 922 (LC).

 

Note: This information is published for general information purposes and is not intended to constitute legal advice. Specialist legal advice should always be sought in relation to any particular situation. BLC Attorneys will accept no responsibility for any actions taken or not taken on the basis of this publication.

 

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