Sexual harassment in the workplace is not a novel, nor a historic issue. The manner in which the law has come to deal with sexual harassment in the workplace has evolved over time. Sexual harassment in the workplace may have serious implications for the employer extending beyond bad publicity, to the possibility of financial liability for the conduct of its employees. Employers beware that he who acts through another is deemed to act himself – even in cases of sexual harassment.
In light of recent media headlines concerning sexual harassment in the workplace, it is worth re-visiting the decision of the High Court in Grahamstown, PE v Ikwezi Municipality and others 2016 (5) SA 114 (ECG). This case concerned sexual harassment in the workplace, which gave rise to the plaintiff’s Post Traumatic Stress Disorder. It is on this basis the Plaintiff instituted a claim against the perpetrator and the employer for damages in excess of R4 million.
In this matter, the perpetrator was suspended for two weeks without payment pursuant to the outcome of the disciplinary enquiry. In considering the matter, the court referred to the case of Ntshangase v MEC for Finance: Kwa-Zulu Natal and Another 2009 30 ILJ 2653 (SCA) and pointed out that a decision by a chairperson of a disciplinary enquiry constitutes administrative action and as such is required to be lawful, reasonable and procedurally fair. The employer must therefore be aware that the decision of the chairperson will be attributed to the employer. The Court further stated that if a decision by a chairperson prejudices the employer, it is allowed and obliged to approach the Labour Court to review it, where such decision fails to pass the test of rationality and reasonableness. In the PE-case the court stated that the perpetrator’s conduct towards the Plaintiff was intolerable, despicable and a violent abuse of his position of authority.
After the employee’s return from suspension, the employer undertook to notify the Plaintiff if the perpetrator employee would visit its offices. The attempts by the employer to warn the Plaintiff was predictably impractical. The Plaintiff ultimately found the possibility of running into the perpetrator intolerable and subsequently resigned.
The question before the court in this matter is similar to the question in Grobler v Naspers Bpk en n Ander 2004 4 SA 221 (C):
“[Is] the unlawful act sufficiently connected to the conduct authorised by the employer to justify the imposition of vicariously liability? The existence of a significant relationship between the creation or increase in the risk of the commission of the unlawful act and resultant wrong indicated a sufficient relationship for imposition of vicarious liability. Relevant factors were the opportunity presented to the harasser to abuse his authority, the ambit of his authority and the vulnerability of the potential victim to the abuse therefor.”
The court held that the Municipality placed the perpetrator in the position where he was able to act the way he did. Therefore, the employment relationship facilitated his actions. Employers need to be aware that when it places an employee in a special position of trust, the employer bears the responsibility of ensuring that the employee is capable of trust. The implicit trust in the collegial relationship “forged a causal link” between the perpetrator’s position as a Corporate Services Manager and the wrongful behaviour. Ultimately the court held the Municipality vicariously liable for the sexual harassment by its employee.
In addition to the common law, employees may have an alternative remedy against the employer in terms of s60 of the Employment Equity Act. In terms of subsection 2, an employer is enjoined to take all reasonable steps to eliminate contravention of the Act, which includes sexual harassment. Failure by the employer to take such reasonable steps, will render the employer liable for the conduct of the employee in that the employer will be deemed to have committed the wrongful conduct. The Labour Appeal Court has awarded damages in the amount of R250 000 to an employee who was a victim of sexual harassment. Liberty Group Limited v Margaret Masango (Case no: 105/2015)
This judgment emphasises that there is a growing realisation and appreciation of the prevalence and the devastating effects of sexual harassment in the workplace and enjoins employers to take proactive steps to avoid liability.
These cases issue a serious caution to employers to renew its efforts to rid its workplace from sexual harassment. Employers should take complaints of sexual harassment seriously and deal with it in accordance with a pro-active policy which is in line with the Code of Good Practice on the Handling of Sexual Harassment Cases. Efforts by the employer to protect employees will be viewed favourably by a court, when assessing liability. An employer will be well advised to provide its employees with training on sexual harassment in the workplace and set a structure in place which provide employees with an effective channel of reporting sexual harassment in the workplace.