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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.
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?