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Sexual Harassment at Work: Employers will be held liable

By Siobhan Leyden, Partner in the Employment Law department, Shepstone & Wylie Attorneys

 

On 31 March 2016, the High Court in Grahamstown delivered a judgment in which it held an employer (Municipality) and a senior municipal employee jointly and severally liable for the damages suffered by a female employee who was sexually harassed at her place of work.  Although the value of the damages awarded to the employee have yet to be determined by the Court, the judgment sends a clear message to employers. Employers have a duty to prevent and eliminate sexual harassment at the workplace. 

 

In this case, a relatively junior and young female employee was sexually harassed by her immediate supervisor.  On one occasion the supervisor addressed sexual comments to her and on another occasion, he attempted to force his tongue down her mouth.  After these incidents, the employee felt distressed and anxious to work with her supervisor. She was often required to work late at night with her supervisor and the mere sight of him reduced her to tears. 

 

The employee laid criminal charges against her supervisor and also reported her supervisor's conduct to the Municipality's legal department which investigated the matter and took disciplinary action against him.  However, much to the employee's disappointment, her supervisor was not dismissed and he returned to work after he served his punishment in the form of a meagre 2 weeks’ unpaid suspension.  The employee testified that she couldn't cope in that she was traumatised and would hide if she saw her supervisor at work.  She eventually resigned, after which, she instituted a claim for damages against the Municipality and the supervisor.

 

The High Court came held that:

 

  • Employers have a common-law duty to take reasonable care for the safety of employees.

  • The supervisor created an offensive and intimidating work environment for the employee.

  • The supervisor was in a position of authority and as such, the employee should have been able to trust him.When an employer places an employee in a special relationship of trust, the employer bears the responsibility of ensuring the employee is capable of trust.

  • The Municipality allowed the supervisor to return to work.

  • Although the Municipality had a policy on sexual harassment at its workplace, there was no evidence that employees had received training thereon.

  • The Municipality must be held jointly and severally liable with the supervisor for the employee's damages and loss of earnings.

 

For more information kindly contact Siobhan Leyden at

Article published with the kind courtesy of Shepstone & Wylie Attorneys for more information please visit http://www.wylie.co.za

 

 

 

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