There have been many high profile cases regarding racial insults and the consequences of these for the perpetrator. Shoprite Checkers (Pty) Ltd v Samka and others – (2018) 27 LC 1.11.23 also reported at [2018] 9 BLLR 922 (LC) demonstrates how racial insults ought to be handled in the employment environment.
The employee claimed that she had been discriminated against, on the grounds of race, by being bullied, victimised and harassed by the staff of the store at which she worked as a customer had called her a “stupid k****”.
A CCMA Commissioner rejected the employee’s claim that she had been harassed by fellow staff members because of her race. Instead it was found that the employer had failed to investigate the customer’s insults, for which the employer was liable, properly. The employer was ordered to pay the employee compensation of R75 000. The employer appealed against the award. The employee cross-appealed against the findings that she had not also been discriminated against by bullying and harassment.
The Court accepted that the words used by the customer constituted one of the worst racial insults. However, the question was if the employer could be held liable for the utterances of one of its customers. The Court held that it could not.
The Employment Equity Act (EEA) provides that if an employee discriminates against a colleague while at work, the employer may be held liable if it does not take steps to eliminate the racist conduct. It was clear to the Court that section 60 of the EEA applies only to conduct by an employee of the defendant employer. The Court added that the employee had remedies under the common law or other statutes.
Turning to the cross-appeal, the Court noted the Commissioner had accepted that the employee had been bullied and harassed by colleagues, but that this conduct was not motivated by the employee’s race. Although harassment is declared as a form of discrimination by the EEA, it must still be based on one of the listed or analogous grounds, which the employee had failed to prove.
The appeal was upheld and the cross-appeal was dismissed.
The question will always be to what extent the employer has a responsibility to protect its staff from customers who abuse them verbally. It is a daily occurrence in some establishments. This is not the last case we have seen on this topic.
Contact Global Business Solutions for cases involving racial insults
Cases where racial insults are levied against employees are difficult to deal with. Contact Thembi Chagonda, and the rest of the Employment Equity team, to help you navigate any challenges successfully. Follow this link to contact her.