Employers could face heavy financial damages if they fail to protect staff from sexual harassment at work and fail to create an environment in which its employees’ right to dignity is preserved.
Employers have duty to protect employees
Employers could face heavy financial damages if they fail to protect staff from sexual harassment at work and fail to create an environment in which its employees’ right to dignity was preserved.
Employers could face heavy financial damages if they fail to protect staff from sexual harassment at work, according to a report in the Cape Argus on what it describes as a landmark judgment in the Cape High Court. Four years after she launched her R11.8m damages case, former Naspers secretary Sonia Grobler won one of the biggest lawsuits brought in SA about employers’ responsibility to stamp out sexual harassment. Judge Hennie Nel ruled that Naspers – now Media 24 – was liable for damages, because it had failed to protect Grobler from the harassment of Gasant Samuels, an employee at the time, and it had failed to create an environment in which its employees’ right to dignity was preserved. Grobler has been diagnosed with post-traumatic stress disorder and is currently unable to work.
This was the first case of its kind before a High Court in SA . Previous sexual harassment cases were dealt with by the Labour Court, according to a report in the Sunday Times, which says the court awarded Grobler R750 000 for loss of future earnings, R47 000 for loss of past income and R23 000 for medical expenses which Naspers’ medical fund failed to pay. Judge Hennie Nel said the R750 000 was a provisional amount and would still be finalised. He also ordered Naspers to pay Grobler’s legal costs, which are still to be determined. Judge Nel found the company had failed in its ‘duty of care’ to Grobler. He said Naspers was ‘vicariously liable’ for the s exual harassment.
The judgment has made an employer’s indirect accountability considerably more stringent,according to a report on the News24 site, quoting Nikki Naylor, of the Women’s Legal Centre. She says the employer is now compelled to prevent sexual harassment in the workplace in terms of the Employment Equity Act. ‘Prior to this, the victim had to inform the employer about the harassment. Now anybody – a colleague, friend or family member – can notify the employer, even a month after the incident, and the employer is obliged to act,’ she said. If an employer does not enforce the policy on sexual harassment properly, the employer is accountable for the harassment and not the person. Naspers is considering appealing.
Although widely welcomed, not all commentators agree that the law is yet firmly on the side of victims of sexual harassment. Lisa Vetten, gender expert from the Centre for Violence and Reconciliation, told Sunday Argus there were many hurdles women needed to clear in winning such cases and the law was not necessarily working for them. Vetten was referring to the time it took for Grobler to win the case. ‘It is a main tactic of companies to push complaints out for as long as possible, to discourage and deter them,’ she said. ‘But one must acknowledge what implications the decision has for the future. It is putting a certain amount of pressure on employers, telling them these are the consequences companies face for ignoring complaints.’ The report adds that the judgment coincides with the finalisation by Parliament of the Sexual Offences Bill. It quotes Lulu Xingwana, chair of Parliament’s Committee on the Status of Women, as saying sexual harassment was at this stage included in the definition of sexual abuse as set out in the Bill. ‘The Bill is more inclusive of offences and will tighten sentences,’ Xingwana said.