Racist customer latest: Cashier takes Shoprite Checkers to court

A Shoprite Checkers cashier who took her employer to the Commission for Conciliation Mediation and Arbitration (CCMA) after a customer allegedly used a racist slur against her, lost her case.

Her case regarding the alleged racist remark, Samka v Shoprite Checkers (Pty) Ltd 5, was highlighted in the Commission for Employment Equity’s (CEE) 2020/21 annual report which was released this week.  The case was one of 2137 matters that were filed with the CCMA under the Employment Equity Act. 

Cases reported to the CCMA included 1549 matters related to prohibition of unfair discrimination, 428 cases regarding equal pay for work of equal value, 97 related to sexual harrassment and a further 63 matters described  only as “other”.

Section 6(3) of the EEA provides that, “Harassment of an employee as a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination. Employers have a duty to ensure a healthy and safe working environment, free from violence and all form of discrimination. Harassment in the world of work strips people of their dignity, is inconsistent with healthy working environments, and deprives people of equal opportunities, equally as bad is violence in the workplace,” the CEE noted in its annual report.

In the matter of Samka v Shoprite Checkers (Pty) Ltd 5 the employee was employed as a cashier. 

“During the performance of her duties, a customer became angry and made an extremely racist remark towards her. The employee reported the incident and was allegedly offered no assistance from her employer,” the CEE noted in its report.

“Section 60 of the EEA provides that an employer may be deemed to have contravened the EEA where it is proved that an employee contravened the Act and the employer failed to take the necessary steps to eliminate the alleged conduct.

However the Labour Appeal Court (LAC) found it difficult to understand how an employer can be held liable to its employees for the action of an allegedly racist remark by a customer which was directed at the employee. 

“Furthermore, the court held that the employee was unable to produce evidence that she had been harassed on the grounds of race or on an arbitrary ground. The court held that the employee is entitled to institute a delictual claim against the customer and she could pursue an unfair discrimination claim in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000,” the CEE noted.

“The court emphasised that the employee cannot bring a case in terms of s 60 of the EEA based entirely on the conduct of her employer.”