Over the last two decades our courts have become inundated with cases relating to sexual harassment in the workplace. Sexual harassment has become a major problem in the workplace hence the decision by parliament and our courts to implement policies in the workplace to try and curb the problem. The effects of sexual harassment on a victims’ job and career can be profound. It has been proven that many employees simply decide to leave their jobs or to request a transfer than to endure the harassment until they are psychologically destroyed by the embarrassing situation.The Employment Equity Act explicitly in section 6 prohibits unfair discrimination in very specific terms. It states that no person may unfairly discriminate directly or indirectly against an employee in an employment policy or practice on one or more of the grounds listed in section 6. Section 6(3) further states that harassment of an employee is a form of discrimination where the harassment is based on any one or more of the grounds listed in section 6 (1) which includes sexual harassment. Section 60 deals with the liability of employees for the conduct of their employees committed whilst the employees are at work, where such conduct contravenes the provisions of the EEA. If the conduct is brought to the attention of the employer he or she is obliged to take the necessary steps to eliminate the alleged conduct and to comply with the provisions of the EEA. Section 60(3) renders an employee vicariously liable for the conduct of an employee who contravenes the provisions of the EEA. An employee who cannot prove that reasonable steps were taken to ensure that the provisions of the EEA are not contravened will be held liable for the actions or their employees. An employer who can prove that reasonable steps were taken will not be held liable for the actions of the employee.The provisions of the EEA were applied in the case of Ntsabo v Real Security wherein an employee had been sexually harassed over a period of six months by a fellow employee. The employee had reported the incidents of sexual harassment to the corporation she was employed with which failed to take action against the senior employee. Instead of taking action the corporation moved her to a different work station and placed her on night shift. This gave her the impression that she was being punished for the deed of the senior employee which resulted in her resigning from the corporation and instituting a claim for constructive dismissal and damages for sexual harassment. The court found that she had been constructively dismissed and that the senior employee had contravened section 6(3) of the EEA. The court further held that the employer (corporation) was also liable for the conduct of the senior employee in contravening the Act. In terms of the doctrine of vicarious liability on the other an employer may be held vicariously liable for the actions of its employees committed during the course and scope of their employment. The test for vicarious liability is therefore whether at the time of the alleged act of sexual harassment the employee was acting within the course and scope of his employment. The doctrine came before the court in the case of Grobler v Naspers. In this case Grobler who was employed at Naspers alleged that has had been sexually harassed by her immediate supervisor Mr Samuels. Samuels acted as trainee manager for seven months. Grobler suffered a mental breakdown as a result of the harassment and contented that she was no longer fit to work. She approached the High court for relief and alleged that Naspers (employer) was vicariously liable for the actions of Mr Samuels and the damages she suffered. In Naspers the court had to decide whether Samuels was indeed responsible for Grobler’s condition and if so whether Naspers were vicariously liable for his actions. In coming to its decision various cases were cited by the court as authority that recognised underlying policy considerations of vicarious liability. This included considerations that the employer is in a better position to pay compensation than the employee and to render the employer liable, serves as a deterrent against similar conduct in the future. The court also remarked that the common law courts acknowledge that the evolution of the doctrine continues to be guided by policy. The court ruled that policy considerations justified the finding that Naspers was vicariously liable for the sexual harassment of Grobler. It held further that both Naspers and Samuels were jointly and severally liable for the compensation to be paid. The Code of Good Practice on the Handling of Sexual Harassment Cases which was published as an annexure to the Labour Relations Act was implemented in an attempt to eliminate sexual harassment in the workplace, to provide appropriate procedures to deal with the problem and to prevent its occurrence and to promote and to encourage the development and implementation of policies and procedures which will assist in creating workplaces free from sexual harassment. The cases quoted above demonstrate the different approaches adopted by the courts in seeking to grant relief to victims of sexual harassment. It is clear that policies and procedures should be in place in the workplace that will ensure that employers are not held liable for the actions of their employees committed during the course and scope of employment. The same can however not be said when there are no policies and procedures in place in the workplace.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nmmu/vital:10271 |
| Date | January 2014 |
| Creators | Raubenheimer, Heidi Leasel |
| Publisher | Nelson Mandela Metropolitan University, Faculty of Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis, Masters, LLM |
| Format | v, 66 leaves, pdf |
| Rights | Nelson Mandela Metropolitan University |
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