Employers Liable over Sexual Harassment

Article excerpt

Employees should know that employers can be ordered to pay constitutional damages if employees are sexually harassed at work, even if neither the employee nor the employer know the identity of the perpetrator. The recent case of Piliso v Old Mutual Life Assurance SA (Pty) Ltd illustrates when damages of this sort would be possible.

Piliso found a note written in Afrikaans on a photograph of herself, pinned to her workstation. The next day she found a similar note, this time written in English. The judgment does not reflect exactly what was written in these notes but does say that the words “were extremely crude and offensive”. Piliso felt shocked and unsafe and because the notes were anonymous, did not know whom to trust. Although she immediately brought the incidents to management’s attention, she felt the steps they took were inadequate. She instituted a claim in the Labour Court based on three alternative grounds:

l That the employer was statutorily liable in terms of section 60 of the Employment Equity Act (EEA) for the discriminatory conduct committed against her by the anonymous author of the notes; alternatively,

l That the employer was liable at common law (in delict) on the basis of vicarious liability; and, in the further alternative,

l For the infringement of her constitutional right to equality.

The employer (Old Mutual) eventually admitted that sexual harassment had taken place, but argued it could not be proven that one of its employees was responsible for the incident because no one was able to identify the perpetrator. Therefore, it argued that it could not be liable in terms of section 60 of the EEA or on the basis of vicarious liability for the incidents.

The court accepted Old Mutual’s argument on the first two alternatives. It said that for any claim based on vicarious liability of an employer either in terms of section 60 of the EEA or under the common law (a delictual claim) it was essential for the harassed employee to prove that an employee of the company acting in the course and scope of his/her duties was responsible for the harassment. …