Vicarious liability is a legal concept that holds an employer responsible for the actions of its employees during the course of their employment. In the context of labour law, Section 60 of the Employment Equity Act, No. 55 of 1998, plays a crucial role in establishing vicarious liability for acts of discrimination, harassment, or any unfair employment practice committed by employees.
LEGAL FRAMEWORK
The Employment Equity Act is designed to foster equal opportunities and fair treatment for all employees, irrespective of protected characteristics such as race, gender, or disability. Section 60 specifically addresses the issue of vicarious liability, highlighting the significance of employee notification when discriminatory acts occur.
KEY ELEMENTS OF SECTION 60 WITH EMPHASIS ON EMPLOYEE NOTIFICATION:
Section 60 applies to discriminatory acts occurring in the workplace or during the course of employment. Employers are held accountable for the actions of their employees, regardless of their knowledge or approval of such conduct.
ACTS OF DISCRIMINATION OR HARASSMENT:
The section covers a broad spectrum of discriminatory actions, including unfair dismissals, denial of promotion, unequal pay, and any form of harassment based on protected grounds outlined in the Employment Equity Act.
EMPLOYEE’S DUTY TO INFORM:
An essential element of Section 60 is the obligation for employees to inform their employer immediately when they experience or witness discriminatory behaviour. This notification requirement aims to give employers the opportunity to address and rectify such situations promptly. Without the employee immediately notifying the employer, the employer escapes liability.
EMPLOYER’S LIABILITY
Employers are deemed vicariously liable if discriminatory acts were committed during the course of employment and in connection with fulfilling the employee’s duties. However, the employer may have a defence if it can demonstrate having taken all reasonable steps to prevent such conduct.
EXCEPTIONS AND TIMELY NOTIFICATION
Employers may invoke a defence if they can show that they took timely and appropriate action upon being notified of discriminatory behaviour. Employees are encouraged to report incidents promptly to enable employers to investigate and address the matter in a timely fashion.
CONSEQUENCES:
Failure to respond adequately to employee notifications may result in penalties, fines, or compensation orders against the employer. The South African Human Rights Commission (SAHRC) or the Labour Court may be involved in addressing complaints related to vicarious liability under Section 60.
For professional legal advice contact Tracey Mouton at Goldberg & de Villiers Inc. on 041-5019800 | traceym@goldlaw.co.za
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