Article 23/2024

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.

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).

Up to now, the traditional approach in respect of collective agreements was that the civil courts do not have jurisdiction in respect of the interpretation or application (inclusive of breaches) of collective agreements.