An employer is not liable for the wrongful acts of an employee when the act causing damage was an act done by the employee as an independent individual and not in his or her capacity as employee.

The employer conducted business as a family restaurant and bar. An unpleasant atmosphere developed between a barman and the customer. As the customer was about to leave the bar, the employee left the bar area, meeting the customer in the corridor immediately outside. There the barman punched the customer and, when he fell to the ground, repeatedly kicked him. As a result of the attack the customer sustained injuries including fractures. Immediately after the incident the manager summarily dismissed the employee.

"The assault by G. on the respondent outside the tavern occurred after he had abandoned his duties. It was a personal act of aggression done neither in furtherance of his employer's interests, nor under his express or implied authority, nor as an incident to or in consequence of anything G. was employed to do. The reasons for and the circumstances leading up to the assault may have arisen from the fact that G. was employed by the appellant as a barman, but personal vindictiveness leading to the assaults on patrons does not render the employer liable".

It is not an unfair labour practice for an employer to transfer an employee to another position where there is a legitimate commercial and operational reason for the transfer and as long as the employee does not suffer a loss of benefits or a diminution in status. An employer is not precluded from utilizing an employee's services in the most effective manner possible.

The arbitrator was asked to determine whether the transfer of the employee from manager: radio planning to senior specialist engineer constituted an unfair labour practice. The employee was initially employed as a radio planning engineer and thereafter promoted to senior engineer. Later he was appointed as a manager of network quality. He subsequently volunteered to also assume responsibility as manager of planning and optimisation. The employee was then transferred to the position of senior specialist engineer. The latter position came into existence pursuant to the employer establishing a new 'technical career path' in its organization. The applicant did not agree to the transfer on the basis that it amounted to a demotion. He wanted to remain on the managerial career path and envisaged that his future would be firmly anchored in a management role. The arbitrator found that the transfer of the applicant was not procedurally unfair; that there was a legitimate commercial and operational reason for the transfer; that the employee did not suffer a loss of benefits or a diminution in status by virtue of the transfer; and that the employee failed to prove that the employer's conduct amounted to an unfair labour practice.

(At p 697F) Although our labour law jurisprudence has made substantial intrusions into the terrain of an employer's managerial prerogative, I do not believe that we have advanced to the stage where an employer is precluded from utilizing an employee's services in the most effective manner possible. One can strongly sympathize with the applicant as he is plainly desirous of being employed in a management role. He has also considered studying for an MBA degree and undoubtedly feels comfortable in such an environment. Unfortunately his individual aspirations must remain subservient to the company's legitimate operational needs.

Harmse and City of Cape Town (Labour Court; Date of Judgment: 09 May 2003)

The Employment Equity Act goes beyond establishing affirmative action as an employer’s defence against discrimination. The Act provides for an applicant’s right to affirmative action.

When the City of Cape Town appointed two white males to executive posts, an applicant (an existing employee) alleged that the decision of the employer not to shortlist him for any of the three posts for which he had applied constituted unfair discrimination prohibited by s 6 of the Employment Equity Act 55 of 1998. The ruling is about exceptions the City took to the applicant’s claim, so it is not a decision on the merits of whether there was actual discrimination. It is also not a decision on whether employees have a right to affirmative action arising out of an employment equity plan. It was because of a lack of an equity plan that Judge Wagley took the opportunity to deal with the City’s contention that affirmative action may only serve as an employer’s defence or "shield". The court said that having regard to the Act`s requirement that an employer must take measures to eliminate discrimination in the workplace, it also serves as a sword in the hands of an employee who can demand that an employer takes measures to achieve equity.

Para 33: If one were to have regard only to section 6 of the Act then one might be drawn to the conclusion that affirmative action is no more than a defence to a claim of unfair discrimination. Affirmative action is indeed a defence to be deployed by an employer against claims that it has discriminated unfairly against an employee. However, from the reading of the Act it appears that affirmative action is more than just a 'defence' in the hands of an employer and should not be confined to so limited a role in the elimination of unfair discrimination in the workplace. The definition of affirmative action in section 15 indicates a role for affirmative action that goes beyond the passivity of its status as a defence. Affirmative action measures include measures to "eliminate employment barriers", to "further diversity" in the workplace and to ensure "equitable representation". In these respects affirmative action involves more than just a defensive posture. It includes pro-activeness and self-activity on the part of the employer. The Act obliges an employer to take measures to eliminate unfair discrimination in the workplace.

Para 44. One of the ways in which this issue has been posed by the respondent is that affirmative action may only serve as a defence. In part this is correct. The real answer however lies in the determination of who is making the claim of affirmative action. It may found a cause of action in the hands of one and defence in the hands of another. If one were to have regard only to section 6 of the Act then one might be drawn to the conclusion that affirmative action is no more than a defence to a claim of unfair discrimination. Affirmative action is indeed a defence to be deployed by an employer against claims that it has discriminated unfairly against an employee. In this sense, it serves as a shield. However, having regard to the fact that the Act requires an employer to take measures to eliminate discrimination in the workplace it also serves as a sword.

Para 47. There is no doubt that an employer may not discriminate unfairly against an employee. This right not to be unfairly discriminated against is an integral part of the right to equality and a necessary condition of the inherent right to dignity in section 10 of the Constitution. This right not to be unfairly discriminated against is a right enjoyed by all employees whether or not they fall within any of the designated groups as identified in the Act. If an employer fails to promote the achievement of equality through taking affirmative action measures, then it may properly be said that the employer has violated the right of an employee who falls within one of the designated groups not to be unfairly discriminated against. Similarly, if an employer discriminates against an employee in the non-designated group by preferring an employee from the designated group who is not "suitably qualified" as contemplated in sections 20(3) to 20(5) of the Act, then the employer has violated the right of such an employee not to be discriminated against unfairly. In either case, the issue is whether the employer has violated an employee's right not to be discriminated against. To this extent, affirmative action can found a basis for a cause of action.

Para 48. Whether or not employees have a right to affirmative action arising out of an employment equity plan is another question altogether. A positive answer to that question does not inarguably arise from the language of sections 20(1) and 20(2) of the Act. One would have to consider the provisions of sections 20(1) and 20(2) of the Act, together with the Act as a whole and the Constitution. If however an employer adopts an employment equity plan that regulates appointments and promotions, then the employees may have a legitimate expectation that the respondent will act in accordance with the plan.

Para 49. On an analysis of the Constitution and the Act I am satisfied that the Act and specifically sections 20(3) to (5) read with Chapter II do indeed provide for a right to affirmative action. The exact scope or boundaries of such a right is a matter that will have to be developed out of the facts of each case.