The scenario is as follows: after an employee’s employer made his/her employment intolerable compelling him/her to resign, the employee made the decision not to pursue the conventional remedy of claiming an unfair constructive dismissal in terms of the LRA (s186(1)(e) read with s191 of the LRA). The employee also elected not to pursue a claim of unfair discrimination in terms of s6(3) of the Employment Equity Act 55 of 1998, in terms of which he/she could have claimed both compensation and damages. Instead, the employee elected to pursue a claim sourced in common law and contended that he/she had been the victim of a civil wrong, namely, a delict. In considering the matter, how did the High Court of South Africa, Eastern Cape Division, in Erasmus v Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG), recently deal with the following issues:
- to what extent is it the prerogative of an employee to formulate his or her claim challenging the lawfulness and not the fairness of the conduct of the employer?
- when dealing with the quantum of damages where a delict has been committed, to what extent is a court concerned with a statutory cap?
- what are the consequences of an employer not taking steps to protect an employee allegedly subjected to sexual harassment?
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The following approach was adopted:
- in 2016, the high court found the defendants (municipality and Jack) jointly and severally liable to pay the plaintiff (employee, Erasmus) damages to the extent proven by her, suffered in consequence of being sexually harassed in 2009 at the offices of the municipality in Jansenville
- Erasmus challenged the lawfulness, not fairness, of the conduct of the employer
- it is the prerogative of the plaintiff to formulate a claim in the manner she did and as she deemed fit – Baloyi v Public Protector and Others 2021 (2) BCLR 101 (CC), at paragraphs [37] to [41]
- the high court is not concerned with compensation limited by a statutory cap and the quantum is ascertained applying the principle that plaintiff is entitled to proven damages: Black and Others v Joseph 1931 AD 132, at 150
- the Dr Beyers Naude Local Municipality is the successor in law of Ikwezi Local Municipality and, unless specifically stated otherwise, is referred to as ‘the Municipality’ in the judgment
- more than 3 months lapsed before Jack was charged with gross misconduct, in that he forced himself upon a female subordinate, Erasmus, and attempted to kiss her against her will
- half a year after the assault, the presiding officer of the enquiry found Jack guilty of the charge and inexplicably used ‘the need to uplift the skills of employees’ as the basis for not imposing dismissal as a sanction (instead imposing suspension without pay for a 2-week period as the sanction)
- in Khumalo and Another v MEC for Education: KwaZulu-Natal 2014 (5) SA 579 (CC), the court held that the municipality, as an organ of state, in terms of s195 of the Constitution, was obliged to challenge disciplinary findings which are indefensible – in casu, it was found that it was part of the duty of the municipality to maintain the integrity of the organisation and to ensure proper discipline therein and thus remedy the injustice suffered by Erasmus
- in Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd 2019 (4) SA 331(CC), it was further held that the above duty is to be interpreted in the context of the special overarching obligation on organs of state to uphold the rule of law
- it was, therefore, found that a review application should have been brought (against the finding of the presiding officer of the disciplinary enquiry) in terms of s158(1)(h) of the LRA seeing that a municipality falls within the definition of a ‘state’
- the municipality had a duty in respect of Erasmus to, inter alia: (i) provide a safe working environment; (ii) take steps to protect her from the person who assaulted her; (iii) protect her from the psychological harm flowing from the sexual harassment – R & C X-Press Freight v Munro (1998) 19 ILJ 540 (LAC), at paragraph [45]; McGregor v Department of Health, Western Cape and Others (2021) 42 ILJ 514 (LAC); Media 24 Limited and Another v Grobler 2005 (6) SA 328 (SCA)
- in conclusion, the high court found that, regrettably, the municipality, after the finding of guilty, took no measures to protect Erasmus and she was, therefore, left to protect herself (unable to cope, she continued to suffer emotionally and mentally)
