This article will briefly discuss the common law option available to employees who are exposed to a form of discrimination in the workplace, specifically sexual harassment and the employer’s failure to adequately address the issue. The focus of the discussion will be on a recent High Court case, Phil-Ann Erasmus v Dr Beyers Naude Local Municipality and Xola Vincent Jack.
The Plaintiff, a former Municipality employee, was sexually assaulted by her immediate supervisor. The work environment became unbearable for the Plaintiff and she could no longer cope due to Post Traumatic Stress Disorder she experienced. Accordingly, the Plaintiff resigned from her position at the Municipality.
According to section 186(1)(e), read with section 191 of the Labour Relations Act, 66 of 1995 (“LRA”), the conventional remedy afforded to an employee in a similar position would be a constructive dismissal claim that can be lodged at the CCMA. The essential feature of a constructive dismissal is that the employee terminates the employment relationship due to the intolerable nature thereof. The decision of the employee is not entirely voluntarily as it is caused by the employer’s actions and/or omissions. Even though the employee makes the decision to resign, it is still seen as a form of dismissal.
Section 6(3) of the Employment Equity Act, 55 of 1998 (“EEA”) provides that sexual harassment is seen as a form of discrimination and, therefore, an employee would also be entitled to the remedies afforded by the Act, which includes a claim for damages and compensation.
Notwithstanding the aforementioned conventional remedies, the Plaintiff pursued a delictual claim sourced in common law.
The plaintiff’s claim for damages consisted of past and future medical expenses, past and future loss of income, general damages, and contumelia in the sum of R4,028,416.80. The issues of liability and quantum were separated, and the court was first asked to determine whether the employer and the perpetrator are liable, jointly, and severally, to pay the damages.
In the first judgment, the court found that the employer and the perpetrator were liable to pay the Plaintiff such damages as she may be able to prove she suffered in consequence of the sexual harassment.
In determining the quantum, the court looked at the facts of the matter, specifically the impact of sexual harassment in the workplace and the employer’s decisions after becoming aware of the offence. The court criticised the employer for the inadequate manner in which it handled the matter. The employer, on contentious legal advice and without any satisfactory reason, took a decision not to suspend the perpetrator. Furthermore, the employer elected to instruct the perpetrator to rather remain at their Klipplaat office and not have any contact with the plaintiff, who was based in the Jansenville office. In addition to failing to ensure that the perpetrator did not have contact with the plaintiff, the employer also failed to prioritise disciplinary proceedings against the perpetrator. A hearing was only held more than half a year after the harassment. The enquiry chairperson recommended a sanction of two weeks’ unpaid suspension.
The employer raised legal arguments in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”) to avoid liability, which the court rejected.
The court concluded that the employer had failed in its legal duty to protect the Plaintiff from further trauma occasioned by any interaction with the perpetrator pending the disciplinary enquiry. The court, referring to Ntsabo v Real Security CC 2003 24 ILJ 2341 (LC), where it was held that the employer had effectively supported the harasser by not sanctioning him, found that the stance adopted by the employer demonstrated a disturbing lack of appreciation of its legal obligation to have provided the Plaintiff with a safe working environment. As a result, the court found the employer and the perpetrator to be jointly and severally liable, the one paying the other to be absolved, to pay the damages to the Plaintiff in the amount of R4 million.
What is also noteworthy to mention is that subsequent to the aforesaid judgment, the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace was gazetted on 18 March 2022, which serves as a guideline for employers when dealing with harassment in the workplace.
As outlined in the aforementioned judgment, employees who are subject to discrimination in the workplace, which are not adequately dealt with by the employers, will be eligible for not only the conventional claims contained in the LRA and EEA but also for delict. The employee will thus be able to decide on which grounds to pursue their claim.
Employers have a duty to all employees to show respect to victims of discrimination that occurs in the workplace and to provide a safe working environment. The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace has been enacted to provide guidance to employers to ensure that these cases are dealt with adequately. A delictual claim will also be available to employees who are exposed to other forms of discrimination in the workplace, as listed in the EEA.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE).