Are employers responsible for preventing discrimination?

Can an employer be held vicariously liable for failing to take sufficient steps to eliminate unfair discrimination by a group of employees against a fellow employee?

 COURT’S DECISION

In the case of Biggar v City of Johannesburg (Emergency Management Services) (2017) the Labour Court (“LC”) had to consider this issue. Mr Victor Biggar (the “Applicant”) was employed as a Fire Fighter Emergency Medical Technician (“EMT”) by the City of Johannesburg: Emergency Management Services (“Respondent”) at Brixton Fire Station (“Brixton”).

The Applicant commenced his employment with the Respondent in the year 2000. Throughout his employment he was stationed at Brixton. The Applicant was the first black person to be employed at Brixton as a Fire Fighter and resided in the housing apartments provided by the Respondent together with his family.

The Applicant complained of racial abuse from his colleagues. Over the period 2000 to 2008 the Applicant and his family had been subjected to numerous acts of racism by, primarily, three of the Respondent’s white colleagues.

The Applicant’s children were not allowed to swim in the communal pool or play soccer in the residential complex provided by the Respondent. They were subjected to various forms of racial abuse. The Applicant’s son, for instance, was called a k***r and his wife was called a b**ch. The use of the word K***r was prevalent at Brixton. The Applicant and his family felt belittled and humiliated.

The animosity between the Applicant, his family, and his white colleagues, and their family, escalated resulting in numerous fights between them and an attempted murder charge being laid against the Applicant (the Applicant was subsequently cleared of this charge).

While the Applicant was charged by the Respondent for this incident, his colleagues were not. Despite making numerous complaints with the relevant members of the Respondent (no formal grievance was ever laid), the Respondent failed to take steps aimed at sanctioning the perpetrators concerned or preventing further incidents of racism. The Applicant, in frustration, went so far as to report the discrimination he experienced to the media and the Human Rights Commission.

The Applicant subsequently resigned on 12 June 2012 and pursued an unfair discrimination claim against the Respondent. He sought compensation. Findings In deciding the matter, the LC noted that the employer had an obligation to eliminate unfair discrimination at work. The LC had regard to following relevant provisions of the Employment Equity Act 55 of 1998 (“EEA”): Section 5 of the EEA provides that every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice. Section 6 of the EEA provides that –

(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.

(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 60 of the EEA provides –

(1) If it is alleged that an employee, while at work, contravened any 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.

(2) 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.

(3) 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 the provision.

(4) Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to prove that he did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.

In President of the Republic of South Africa and another v Hugo [1998] JOL 1543 (CC) the Constitutional Court contextualised the rationale for the prohibition of unfair discrimination as follows –

At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.

In reaching its decision the LC noted that in this particular case racial abuse and harassment took place over a period of seven years. The Applicant testified that he felt belittled and humiliated by the racist manner in which his white colleagues treated him and his family. The Respondent, on the other hand, resorted to technicalities, instead of firmly dealing with the acts of racism perpetrated against the Applicant and his family.

While the Applicant’s supervisor had taken some steps to address the Applicant’s complaint the Respondent persisted in its stance that there was no racial discrimination. The Court, therefore, held that the Respondent had taken insufficient steps to prevent such discrimination from continuing. What was required was for the Respondent to act in a decisive manner that would have reflected a clear intention to eliminate any form of discrimination (for instance, by instituting disciplinary action against the perpetrators of the discrimination). This it had failed to do.

Accordingly, the LC found in favour of the Applicant and held that the Respondent unfairly discriminated against the Applicant on the ground of race. The Respondent was ordered to pay the Applicant an amount equivalent to 12 months’ remuneration, calculated at the rate of his remuneration at the time of his resignation. Importance of the case This case sounds a caution to employers to be proactive when addressing discrimination within the workplace. Failure to do so could result in significant liability being incurred.

By Andre Van Vuuren, Senior Associate and Jacques van Wyk, Director, Werksmans Attorneys

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