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Article 23/2024

LabourEdge

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

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  • In Erasmus v Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG); (2021) 42 ILJ 1543 (ECG), the high court paid consideration to the following factors:
    • the employee, when committing the act of sexual harassment, acted solely for his own purpose
    • the incident happened whilst rendering his services for the employer, thus requiring consideration of the objective test pertaining to deviation matters (see Article 22/2024)
  • The high court in casu came to the following conclusions:
    • the nature of the employment relationship presented an opportunity for the wrongful act to be executed in the course of carrying out the employee’s duties
    • there is a duty on an employer to ensure that the employee placed in a position of trust is capable of such trust
    • the trust forged a causal link between the employee executing the wrongful act and the wrongful act itself
    • consequently, the employer and the employee, who committed the sexual harassment, are jointly and severally liable for damages the employee (who was sexually harassed) can prove as a result of the wrongful act (i e the act of sexual harassment)
  • Kindly take note that this common law liability exists over and above the statutory vicarious liability in terms of s60 of the Employment Equity Act.

What are the principles governing common purpose misconduct?

What are the principles governing an employee’s duty to disclose to his/her employer information about misconduct?

In Article 31, we dealt with the distinction between desertion and abscondment.

In Article 32, we dealt with the misconduct of deeming desertion.

In this article, we will deal with termination of employment by operation of law in the private sector – similar to deeming to be discharged in the public sector.