Employer’s Liability

Employers must be very careful to take steps to know what their liability is towards their employees.

One of the employer's liabilities is to provide a safe and healthy working environment for the employees.

This does not only mean a safe environment in terms of bodily injury or accidents - it also means a safe environment in terms of other things like sexual harassment.

Employers must take steps to protect their employees against such happenings in the workplace.

In Media 24 Ltd & another v Grobler [2005] 7 BALLR 649 (SCA), an employee had been sexually harassed by a junior manager over a period of five months.

At the time that the alleged sexual harassment took place, the complainant was a 33-year-old secretary employed by the employer. The accused was at that time a trainee manager employed by the employer.

It was alleged by the complainant that the employer had failed to address the issue, despite her requests for him to do so, had failed to act despite the fact that it was common knowledge that the junior manager was sexually harassing her, that's the employer failed to deal with the allegations of sexual harassment seriously and expeditiously, and permitted the accused wide latitude in his conduct towards his subordinates, in particular, the complainant.

There were also other issues, but the above is the crux of the matter.

It was also alleged that there was a romantic affair between the complainant and the accused at some stage, and that the final incident leading up to the whole matter of the court action actually occurred off the workplace premises, which cause the employer to allege that it therefore had nothing to do with the workplace.

This was a very involved matter, which went from the Cape High Court to the Supreme Court of Appeal.

It was found that there was a negligent breach by the employer of a legal duty to its employees to create and maintain a working environment in which, amongst other things, its employees were not sexually harassed by other employees in their working environment.

It was also found that an employer has a common law duty to its employees to take reasonable care for their safety,  and also found that this duty cannot be confined to an obligation to take reasonable steps to protect employees only from physical harm caused by what may be called physical hazards.

The view of the court was that this duty also included a duty of the employer to protect employees from psychological harm, caused for example by sexual harassment by another employee.

The employee who was sexually harassed in this matter was awarded damages of R776,814 -00.

Employers must know therefore that ignoring a legal duty such as this can prove to be very costly because apart from this huge award of compensation, there is also the aspect of legal and other costs which must be borne by the employer - all of which could have been avoided had the employer he only take notice of the complaints, and taken action in terms of the employee's complaints.

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