Shoprite Checkers (Pty) Ltd v Samka and Others (C844/15) [2017] ZALCCT 64; [2018] 9 BLLR 922 (LC); (2018) 39 ILJ 2347 (LC) (29 November 2017)

Shoprite Checkers (Pty) Ltd v Samka and Others (C844/15) [2017] ZALCCT 64; [2018] 9 BLLR 922 (LC); (2018) 39 ILJ 2347 (LC) (29 November 2017)

The court held that section 60 of the Employment Equity Act only applies to conduct by employees, not customers. Although the customer's racist utterance was reprehensible, the employer cannot be held liable under the EEA for such conduct. The arbitrator erred in finding the employer liable for discrimination based on the customer's actions. Regarding bullying and harassment, the evidence did not establish that these were linked to a listed or arbitrary ground as required by the EEA. The cross-appeal failed because the respondent did not prove unfair discrimination on any such ground. The award of compensation was set aside, and the employer was found not to have discriminated against the...

Citation
[2017] ZALCCT 64
Parties
Applicant: Shoprite Checkers (Pty) Ltd; Respondent: Bulelwa Samka; Respondent: CCMA; Respondent: Eldridge Edwards N.O.
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
29 November 2017
Case Number
C844/15
Procedural Posture
Civil Appeal / Appeal and Cross Appeal Against Arbitration Award Under S 10(8) of the Employment Equity Act
Outcome
Appeal upheld; cross-appeal dismissed. The employer did not discriminate against the employee under the Employment Equity Act.
Judges
A J Steenkamp
Legal Topics
Employment Equity Act, Unfair Discrimination, Vicarious Liability, Workplace Harassment, Burden of Proof
Labour Law Civil Procedure Employment Equity Act Unfair Discrimination Vicarious Liability Workplace Harassment Burden of Proof

Case Brief

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Parties

Shoprite Checkers (Pty) Ltd

Applicant

Bulelwa Samka

Respondent

CCMA

Respondent

Eldridge Edwards N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal and Cross Appeal Against Arbitration Award Under S 10(8) of the Employment Equity Act

Legal Issues

  1. 1 Is an employer liable under section 60 of the Employment Equity Act for the discriminatory conduct of a customer towards an employee?
  2. 2 Did the employer unfairly discriminate against the employee on the ground of race or other arbitrary grounds such as bullying and harassment?
  3. 3 Was the arbitrator correct in awarding compensation for alleged unfair discrimination?

Ratio Decidendi

The court held that section 60 of the Employment Equity Act only applies to conduct by employees, not customers. Although the customer's racist utterance was reprehensible, the employer cannot be held liable under the EEA for such conduct. The arbitrator erred in finding the employer liable for discrimination based on the customer's actions. Regarding bullying and harassment, the evidence did not establish that these were linked to a listed or arbitrary ground as required by the EEA. The cross-appeal failed because the respondent did not prove unfair discrimination on any such ground. The award of compensation was set aside, and the employer was found not to have discriminated against the...

Court Disposition

Appeal upheld; cross-appeal dismissed. The employer did not discriminate against the employee under the Employment Equity Act.

Orders

  • The appeal is upheld and the cross-appeal is dismissed.
  • The arbitration award is substituted with an order that Shoprite Checkers (Pty) Ltd did not discriminate against Ms Bulelwa Samka.