A 10 January 2023 judgment in the Labour Court found the South African Police Services (SAPS) vicariously liable for racial harassment perpetrated against a colonel by two of her subordinate warrant officers.
In March 2017, two warrant officers in response to corrective action by the colonel due to absenteeism, accused her of calling them by a racially derogatory term (“the K-word”). Despite grievances lodged against the subordinates, information from a SAPS intern who had overheard them conspiring to falsely accuse the colonel of racism, and an investigation concluding that there was a prima facie case of racial harassment, nothing was done.
The warrant officers were eventually charged and found guilty of making false statements in an affidavit and impairing the colonel’s dignity by making her out as a racist after she had been acquitted of all charges, and after they had been charged and disciplined on other charges. Solidarity was the applicant on behalf of the colonel.
The Labour Court was required to determine whether SAPS, the Minister of Police and the National Commissioner of SAPS were liable in terms of section 60 of the Employment Equity Act, 1998 (the EEA) for the racial harassment against the colonel. Section 60 provides that if an employer fails to take the necessary steps to investigate and eliminate unfair discrimination or sexual harassment, which has been brought to their attention, and it has been proven that an employee contravened a provision of the EEA, the employer must be deemed to have contravened that provision.
The court confirmed that “the use of racial slurs…stubbornly persists in the workplace, uttered not only by those with the power to subjugate” and referred to the “emerging trend of false claims of racial or sexual harassment by subordinates against their superiors in order to circumvent being disciplined”.
The court also found that the warrant officers had clearly harassed the colonel for over a year and instead of dealing with her complaint, SAPS entertained the false allegations of racism and failed to investigate the racial discrimination, nor to take the necessary steps to eliminate it, and had rather done “…everything in their power to protect the perpetrators of racial harassment”.
The court warned that in order to escape being held liable for the conduct of its employees, an employer is expected to “transcend the confines of superficial compliance and deal with historical ethos and systems that may have created a toxic environment which is susceptible to racial harassment”.
The court concluded that SAPS was liable for the racial harassment and ordered the payment of R 300 000 in damages to the colonel, that SAPS tender a written apology to the colonel for the indignity she had suffered, and in a rare occurrence, ordered that Solidarity’s costs be paid.
This judgement is important in highlighting that employers who are made aware of allegations of unfair discrimination cannot do the bare minimum in order to escape liability and must conduct a thorough examination of their workplace and substantially deal with any non-compliance of the EEA, especially in instances of alleged racial harassment. Given the recent amended Code of Good Practice on the Prevention and Elimination of Harassment in the workplace, which sets a high standard for acting on allegations of harassment, employers should take the court’s conclusions sensibly. This judgment also highlights that employers should guard against the emerging trend of false claims of racism which are being brought by employees in an effort to evade disciplinary action.
The court found that SAPS were vicariously liable for the harassing conduct. This is not a case involving vicarious liability. It is deemed liability under section 60 of the EEA.
The full citation of the judgment is Solidarity obo Oosthuizen v South African Police Service and Others (JS1030/17)  ZALCJHB 4 (10 January 2023).