Employment law update – Can an employer be held liable for discrimination perpetrated by a customer?

November 1st, 2020

In Samka v Shoprite Checkers (Pty) Ltd and Others [2020] 9 BLLR 916 (LAC), the employee was employed by Shoprite Checkers (the employer) as a cashier. During the performance of her duties, a customer became angry and made an extremely racist remark towards her. The employee reported the incident and was allegedly offered no assistance from her employer.

As a result, the employee referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of s 60 of the Employment Equity Act 55 of 1998 (EEA) alleging that she was unfairly discriminated against on the basis of race. She further alleged that the employer’s practices were racist towards black cashiers and that she was being harassed, victimised and bullied by other members of staff.

Section 60 of the EEA provides that an employer may be deemed to have contravened the EEA where it is proved that an employee contravened the Act and the employer failed to take the necessary steps to eliminate the alleged conduct. This section accordingly allows for an employer to be held vicariously liable for the discriminatory conduct of an employee.

In considering the evidence, the CCMA found that the approach adopted by the employer in respect of the incident was insufficient to address the racist abuse suffered by the employee and that this amounted to indirect racial discrimination. The employer was accordingly deemed to have contravened the EEA and was ordered to pay the employee compensation in the amount of R 75 000 (Shoprite Checkers (Pty) Ltd v Samka and Others [2018] 9 BLLR 922 (LC)). As regards the allegation of harassment, the CCMA found that while the employee had been bullied by certain individuals, there was no evidence that the reason for the harassment was her race. The employer took the matter on appeal to the Labour Court (LC).

The question before the LC was whether the employer could be held liable under the EEA for racist remarks by a customer? On the basis of the clear language of s 60 of the EEA, the LC held that it could not. The EEA provides that where an employee discriminates against another employee, the employer may be held liable if it does not take the necessary steps to eliminate the discriminatory conduct. This provision could not be extended to hold an employer liable for the conduct of a customer, which was directed towards an employee. The LC accordingly upheld the appeal. The employee then took the matter on appeal to the Labour Appeal Court (LAC).

The LAC found that the EEA clearly sets out the requirements for a claim against an employer for unfair discrimination, one of which is that the impugned conduct must be committed by ‘an employee of the employer’. Section 60 of the EEA is thus expressly confined to the conduct of an ‘employee’ as defined in s 1 of the EEA. The fact that the section applies exclusively to employees makes sense in that an employer exercises authority over an employee but none over a customer. An employer has no control over how a member of the public might behave in entering a store such as Shoprite Checkers. The LAC accordingly found it difficult to understand how an employer can be held liable to its employees for the action of a customer which is directed at the employee.

The LAC went on further to state that the employee was not without a remedy. She is entitled to institute a delictual claim against the customer and she could pursue an unfair discrimination claim in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. But what the employee cannot do is bring a case in terms of s 60 of the EEA based exclusively on the conduct of her employer.

Turning to the employee’s further claim that she had been subjected to bullying and harassment in the workplace, the LAC found that the EEA placed a burden on the employee to show, on a balance of probabilities, that the conduct alleged by her was not rational, that it amounts to discrimination, and that the discrimination was unfair. An allegation of harassment cannot in itself render the employer liable for purposes of the EEA. The employee was unable to produce evidence that she had been harassed on the grounds of race or on an arbitrary ground. There was thus no basis on which to disturb the finding of the CCMA and the LC in respect of the employee’s complaints of racist practices and bullying.

The appeal was dismissed.

Unfair discrimination on the ground of disability

In City of Cape Town v South African Municipal Workers Union obo Damons [2020] 9 BLLR 875 (LAC), Mr Damons (the employee), was employed by City of Cape Town (the employer) as a firefighter. After serving as a firefighter for ten years, the employee suffered an injury while on duty, which left him disabled. Consequently, the employee was no longer able to perform the duties of an active firefighter in that, owing to his disability, he could not perform the physical activities associated with the position.

The employer commenced an incapacity process with the employee, which resulted in the employee being placed in an alternative administrative position. Notwithstanding this, the employee retained the designation of firefighter and was paid as such, including a standby allowance.

The employer had a City’s Fire and Rescue Advancement Policy (the Policy) in place for the advancement of employees actively involved with operational firefighting. In order to be advanced from the rank of firefighter to that of senior firefighter, the Policy required, among other things, the successful completion of a physical assessment. The employer declined to promote the employee to the rank of senior firefighter because he was unable to complete the physical assessment as a result of his disability.

Disgruntled by this decision, the employee referred a claim to the Labour Court (LC) on the basis that the Policy precluded him from advancing to the position of senior firefighter and, therefore, constituted an act of unfair discrimination on the ground of disability in terms of s 6(1) of the Employment Equity Act 55 of 1998.

Before the LC, the employer, inter alia, argued that the employee was unable to meet the inherent requirements of a firefighter. The LC rejected the employer’s argument and found that the fact that the employer, after an extensive incapacity process, had decided to continue to employ the employee as a firefighter, albeit in a position that did not require active firefighting, undermined the employer’s argument. The LC held that the way in which the employer applied the Policy to the employee prevented him from advancement as a result of his disability, and this conduct amounted to an act of unfair discrimination. The employer took the judgment on appeal to the Labour Appeal Court (LAC).

On appeal, it was clear from the evidence that the employer had relied on the defence that the employee had been treated as he had because an inherent requirement of the job of a firefighter was the ability to perform certain physical activities. The LAC referred to the case of Imatu and Another v City of Cape Town [2005] 11 BLLR 1084 (LC) where the LC, in dealing with the duties of a firefighter, accepted that physical fitness was an inherent requirement of the job.

While the LC correctly accepted that the employee had been placed in an administrative position that did not require active firefighting, the LAC found it difficult to understand how this conclusion could justify a finding that the employer was guilty of unfairly discriminating against the employee. To the extent that there is a differentiation between the employee and active firefighters who are considered for promotion, this was justified both by the rational requirements contained in the Policy and by the inherent requirements for the position of a senior firefighter. In terms of s 6(2)(b) of the EEA, it is not unfair discrimination to ‘distinguish, exclude or prefer any person on the basis of an inherent requirement of a job’.

The court further noted that the Code of Good Practice on Employment of Persons with Disabilities provides that employers should reasonably accommodate persons with disabilities and further, that an employer may not retain employees who become disabled on less favourable terms and conditions than employees doing the same work. In the present case, it was not possible for the employee to perform the same work as that of an active firefighter. Moreover, it was not in the public interest to have firefighters who are not capable of dealing with the outbreak of fires.

The LAC accordingly held that neither the contents of the Policy, nor its application to the present case, constituted unfair discrimination in terms of s 6(1) of the EEA. The appeal was thus upheld.

Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.

This article was first published in De Rebus in 2020 (Nov) DR 42.

De Rebus