Article 5/2022

Does sexual harassment fall within the protection provided to an employer in terms of the Compensation for Occupational and Diseases Act 130 of 1993 (‘COIDA’)?

_____________________________________

Once the employee in the high court, in Erasmus v Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG), proved that she had been sexually harassed and that her employer was vicariously liable for such delict, the municipality made application for leave to appeal, holding that the relief claimed had not been competent in the first place, seeing that Erasmus was obliged to pursue her remedies in terms of COIDA.

In terms of s35 of COIDA, an employee or dependent of an employee is not entitled to recover damages in respect of any occupational injury or disease resulting in the disablement or death of such employee, against such employee’s employer.  The high court further held as follows:

  • in refusing the application for leave to appeal on the basis that sexual harassment does not fall within the definition of accident arising out of and in the course of employment, it was further held that a strong message was to be sent to employers that they would be liable for the failure to protect the employees within the context of sexual violence
  • the court followed the approach as already dealt with in previous articles, with reference to Churchill v Premier of Mpumalanga and Another (2021) 32 SALLR 27 (SCA) [Article 2/2022]

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.