The Employment Equity Act contains assertive provisions enacted to protect employees from being subjected to unfair discrimination in the workplace. In this regard employers are required ensure that their employees are not subjected to such harmful conduct from fellow employees and to the extent that such harmful conduct is perpetrated in the workplace, employers are required to efficiently take steps to eliminate the harmful conduct.

An illustration of the consequences that follow when employers fail to take steps to eliminate harassment is the case of Solidarity obo Oosthuizen v South African Police Service (“SAPS”) and others.

Colonel Oosthuizen had taken disciplinary action against two of the warrant officers reporting to her. Disgruntled with the disciplinary action taken against them, an altercation ensued between them and Col. Oosthuizen, during which they falsely accused her of calling them “kaffirs”. Given the history and hateful nature of the word, this was a serious allegation to level against Col. Oosthuizen – one that undoubtedly would have resulted in her dismissal if it had been true. No steps were taken by the SAPS to pursue disciplinary action against them despite the allegation being untrue.

After the altercation, the warrant officers lodged a grievance against Col. Oosthuizen based on the same false allegation and they demanded that pending the investigation she be transferred as they felt unsafe and intimidated by her presence at the workplace.

Col. Oosthuizen was approached by a colleague who told her that she heard and observed the warrant officers colluding to falsely accuse the employee. Col. Oosthuizen lodged a grievance requesting that disciplinary proceedings to be instituted against the warrant officers. However, instead of dealing with Col. Oosthuizen’s grievance, the SAPS transferred her pending the finalisation of the disciplinary enquiry instituted against her. Not surprisingly, she was acquitted on all charges.

Dissatisfied with the conduct of the SAPS in failing to attend to her grievance, Col. Oosthuizen referred a dispute to the CCMA. At this point the warrant officers had still not been charged. It was only a year later after Col. Oosthuizen referred her dispute to the CCMA, and following various correspondences sent to the SAPS by Col. Oosthuizen’s union regarding the manner in which the SAPS was handling her grievance that the SAPS instituted disciplinary proceedings against the warrant officers. They were found guilty and were subsequently dismissed.

During that time, Col. Oosthuizen referred a dispute to the Labour Court regarding the failure by the SAPS to eliminate the racial harassment and bullying suffered by her in the workplace.

Proceedings at the Labour Court
In terms of section 60 of the Employment Equity Act, once a grievance is lodged by an employee alleging that another employee has acted in a way which is in contravention with the provisions of the Act, an employer is required to not only consult the relevant parties but to take the necessary steps to eliminate the conduct complained of, failing which the employer itself will be deemed to have contravened the provision of the Act. The employer will escape liability for the conduct of the employee only if it can show that it did all that was reasonably practicable. An employer may be held liable even if the harassment consists of a single incident.

In this matter, the Court found that the SAPS failed to show that following the grievance lodged by Col. Oosthuizen, they consulted with the relevant parties, and secondly, took all the necessary steps to eliminate the racial harassment within the SAPS or comply with the Act. Lastly, they failed to show that they did all that was reasonably practicable to ensure that the warrant officers would not racially harass Col. Oosthuizen or act in contravention of the Act.

Accordingly, the Court found the SAPS to be vicariously liable for the racial harassment perpetrated against Col. Oosthuizen and awarded compensation to the amount of R300,000.00, and in addition ordered the SAPS to deliver a written apology.

This case illustrates that there is an onerous obligation on employers to take active steps towards protecting its employees against harassment and discrimination perpetrated in the workplace. The significant enforcement mechanisms provided for under the Employment Equity Act and the Code render this task to not only be of a moral concern but a business imperative with unfavourable – and potentially expensive – consequences for non-compliance.