The news is replete today with the Me-Too movement against the widespread prevalence of sexual assault and harassment, especially in the workplace.
When can an employer be liable for acts of sexual assault and harassment by one of its employees?
Vicarious liability is a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a legal relationship to the person who did act negligently.
In PE v Ikwezi Municipality and others 2016 (5) SA 114 (ECG) the court had to consider sexual harassment in the workplace, which gave rise to the plaintiff’s Post Traumatic Stress Disorder. She instituted a claim against the perpetrator and the employer for damages in excess of R4 million.
The question before the court in this matter is like 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 Ikwezi Municipality placed the perpetrator in the position where he was able to act the way he did. Therefore, the employment relationship facilitated his actions. 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.
The Employment Equity Act (the EEA)
In addition to the common law, employees may have an alternative remedy against the employer in terms of s60 of the EEA. In terms of subsection 2, an employer must 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)
To avoid vicarious liability, employers need to be proactive and put into place and strictly enforce a Code of Good Practice on the Handling of Sexual Harassment. More importantly, they need to train staff on sexual harassment in the workplace and put measures in place which provide employees with an effective channel of reporting sexual harassment in the workplace.