SECTION 60 OF THE EMPLOYMENT EQUITY ACT 1998: WILL A COMPARATIVE APPROACH SHAKE THIS JOKER OUT OF THE PACK?

Abstract

Section 60 of the Employment Equity Act 1998 provides for the liability of an employer to an employee suffering from discriminatory conduct by another employee. Section 60 also provides two defences that can be raised by the employer in such circumstances. In this article the circumstances under which an employer can be held liable in terms of section 60 are explored. More particularly, the meaning of the requirement that the discriminatory conduct must relate to an employment policy or practice is considered. The possible meaning of harassment in the workplace is also reflected upon with reference to developments and jurisprudence in the context of sexual harassment. The nature and content of the defences available in terms of section 60 are analysed with reference to comparative jurisprudence in Britain, Australia, Canada and the United States of America. In view of this, reservations are expressed about the correctness of the judgment of the Labour Court in SATAWU obo Finca v Old Mutual Life Insurance Company (SA) Limited and Burger.