Employer liability for damages caused by sexual harassment in the workplace

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.

Common law

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.

Personal information for my survivors upon my death or incapacity

I have posted a Wishes and Memories booklet on our website that will be a clear record of your funeral wishes, a source of important documents for legal and public records, and a permanent keepsake of your fondest memories to speak to future generations.

To save your survivors as much heartache as possible immediately following your death, I advise you to: 

o   Put together a box file containing all your important documents, and tell your nearest and dearest, where it is. In this box file, store your will, marriage contract, insurance policies, title deeds, papers for cars, caravans and boats, timeshare information. and other important papers; 

o   List your creditors (credit card, loans, mortgages, store accounts, etc.);

o   List important numbers for your executor and family, such as the name of your broker, lawyer, doctor, dentist, financial advisor, etc.;

o   Leave a list of family and friends, to contact on your death; 

o   List what happens to your DSTV, armed response, personal and home insurance, etc.; 

o   List codes for your security system, and post office box, etc.; 

o   Describe where you want to be buried or cremated, and your funeral wishes, in general; 

o   List all your virtual accounts, usernames and passwords (ranging from email accounts to your social networking profiles (Facebook, Twitter, LinkedIn, etc.), blog posts, photo or music sharing accounts and digital purchases through for example eBay or Takealot.com. Retain these passwords, with other valuables, in a safety deposit box, to be revealed to your executors, only on your death; 

o   Create a digital estate plan (in your will or in a letter of wishes) Instructing your executors whether to maintain your social media sites.

o   Facebook asks: How do I report a deceased person or an account on Facebook that needs to be memorialized? Memorialized accounts are a place for friends and family to gather and share memories after a person has passed away. Memorializing an account also helps keep it secure by preventing anyone from logging into it.

o   What happens to your Twitter account when you die or become incapacitated? “In the event of the death of a Twitter user, we can work with a person authorized to act on behalf of the estate, or with a verified immediate family member of the deceased to have an account deactivated. In the event a Twitter user is incapacitated, due to medical or other reasons, we can work with a person authorized to act on the behalf of the user to have an account deactivated”.