The Labour Court confirmed the position in the recent case of Solidarity obo Oosthuizen v South African Police Service and Others (JS1030/17) [2023] ZALCJHB 4.  In this case, the court found that the employer (“SAPS”) was vicariously liable for the actionable racial harassment suffered by an employee, Colonel Oosthuizen.

The facts of the case are as follows:  consequent to Colonel Oosthuizen taking corrective action against two of her direct subordinates, Warrant Officers Tikoe and Mphana (“the Warrant Officers”), an altercation took place wherein the Warrant Officers threatened and intimidated Colonel Oosthuizen and accused her of calling them k*****s.

Colonel Oosthuizen reported the incident to the Station Commander, who instructed that the matter be investigated with a view to instituting disciplinary action against the Warrant Officers.  Alongside Colonel Oosthuizen’s incident report, the Warrant Officers lodged a grievance against Colonel Oosthuizen alleging that she had called them k*****s and that she often referred to black people as such.  Having completed the investigation into the conduct of the Warrant Officers, it was found that the complaints against them were serious and warranted disciplinary action.

Subsequent to these recommendations, Colonel. Oosthuizen was informed by an intern that she had overheard the Warrant Officers conspiring to falsely accuse Colonel Oosthuizen of calling them k*****s. This led to Colonel Oosthuizen lodging a grievance requesting that disciplinary proceedings be instituted against the two Warrant Officers for the false accusations.

However, this grievance was not dealt with, and instead she was transferred pending the finalisation of the grievance made against her by the Warrant Officers.

Colonel Oosthuizen lodged a second grievance in response to SAPS’s failure to comply with their internal policies and procedures by not taking disciplinary action against the Warrant Officers for conspiring against her.

The Warrant Officers were eventually disciplined and W.O. Mphana was found not guilty but after pleading guilty, W.O. Tikoe received a sanction of a written warning and one-day leave without pay.

Colonel Oosthuizen then referred the matter to the CCMA where the matter was conciliated. A certificate of non-resolution was issued, and the matter was referred to the Labour Court to decide whether SAPS was vicariously liable in terms of section 60 of the Employment Equity Act (“EEA”) for the racial harassment and bullying perpetrated by the Warrant Officers against Colonel Oosthuizen.

Section 60 of the EEA deals with the liability of employers. If it is alleged that an employee contravened a provision of the EEA, the alleged conduct must be brought to the attention of the employer.  The employer must then consult all relevant parties and take necessary steps to eliminate the alleged conduct. If the employer fails to take reasonably practicable steps to eliminate the alleged conduct, and it is found that the alleged conduct contravened the EEA provision, the employer must be deemed to also have contravened that provision and be held liable.

The Court found that Colonel Oosthuizen was racially harassed by the Warrant Officers and such harassment was motivated by insubordination and animus.  The Court further found that SAPS “dismally failed to investigate the racial confrontation and take necessary steps to eliminate it”, and such conduct demonstrates a state of oblivion to their statutory duties in terms of section 60 of the EEA.

As a result of the failure to comply with their statutory duties, the Court held that SAPS was vicariously liable for the disparagement and humiliation suffered by Colonel. Oosthuizen and was ordered to pay compensation of R300 000, tender a written apology to Colonel. Oosthuizen and pay the legal costs incurred.

This case carries an important lesson for employers. They need to be aware of their statutory duties as set out in the EEA, as this is the standard against which the Courts will hold employers to. 

Employers need to ensure that they have grievance procedures in place and that these procedures are communicated to employees. 

It is imperative that employers are able to demonstrate that they have taken the necessary steps to investigate all grievances lodged by their employees.