SEXUAL HARASSMENT & EMPLOYER VICARIOUS LIABILITY
Many employers are oblivious to their vicarious (indirect) liability in various areas of employment law, incorporating that relating to workplace harassment, including sexual harassment.
It’s a real and very serious thing.
The bottom line is that an employer can be subjected to the payment of extensive financial damages and fines, should they not comply with clear employer obligations set out in the Employment Equity Act (“the Act”) and the Code of Good Practice on the Prevention & Elimination of Harassment in the Workplace (“the Code”).
To begin with, section 60 of the Act is entitled ‘Liability of employers’, and goes on to confirm in section 60(3) that “If the employer fails to take the necessary steps (in dealing with sexual harassment), and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision”.
In Media 24 Ltds v Grobler [2005: 7 BLLR], the Supreme Court of Appeal held that “an employer owes a common law duty to its employees to take reasonable care for their safety” which includes “a duty to protect them from both psychological harm caused, by example, sexual harassment by co-employees”.
Section 60 of the Code has been referred to as a codification of the common law principle of vicarious liability.
The Act makes provision for fines of up to R1 million in certain circumstances, and almost R3 million in others.
Section 8.1 of the Code emphasises these employer obligations –
“Employers are under obligation in terms of section 60 of the EEA take proactive and remedial steps to prevent all forms of harassment in the workplace.
This includes an assessment of risk of harassment that employees are exposed to while performing their duties as far as is reasonably practicable”.
The Code continues that employers must implement “awareness training initiatives to educate employees at all levels about harassment to reinforce and maintain compliance through ongoing awareness programmes.
AT CTL WE PROVIDE AWARENESS TRAINING.
EVERY EMPLOYEE MUST BE COMPLETE AWARENESS TRAINING