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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.
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

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If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

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In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

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