Can an employer be held liable if a customer utters racial remarks towards one of its employees?
This question had to be answered by the Labour Court in the case of Shoprite Checkers (Pty) Ltd v Samka and others [2018] 9 BLLR 922 (LC). The employee claimed that she had been discriminated against on the ground of race by being bullied, victimised and harassed by the staff of the store at which she worked. She also claimed that a client made racist remarks to her and that management did nothing about it.
A CCMA commissioner rejected the employee’s claim that she was harassed by staff because of her race, but found that Shoprite had failed to properly investigate the customer’s racist comment.
Shoprite was ordered to pay the employee compensation of R75 000. The company appealed against the award.
The court accepted that the words used by the customer constituted an appalling racist insult. However, the question was whether an employer could be held liable for the utterances of a customer.
The court noted that the Employment Equity Act provides that if an employee discriminates against a colleague while at work, the employer may be held liable if it fails to take steps to eliminate the racist conduct. This made it clear that section 60 of the EEA applies only to conduct by an employee.
The court added that the employee had remedies under the common law or other statutes.
The appeal was successful and the CCMA award was set aside. The employer, in these circumstances, can’t be held liable for the conduct of its client.
Compiled by Otto Bronkhorst
National Manager: Training & Research
012 8102011/0748946712