Harassment in the Workplace, Restraining Orders and the Protection from Harassment Act
Mark Meyerowitz and Shane Johnson, Cliffe Dekker Hofmeyr
Employers have a duty to create and maintain a safe working environment for their employees. This includes the duty not to in any way facilitate harassment (including sexual harassment), or allow harassment to take place at work. If an employer fails to take appropriate action against an employee who harasses another employee, that employer may become liable for a harassment lawsuit in terms of the Employment Equity Act, No 55 of 1998 (EEA).
New legislation has recently supplemented this prohibition on harassment. The Protection from Harassment Act, No 17 of 2011 (PHA) came into force on 27 April 2013. The PHA applies to everyone who commits acts of harassment and is designed to protect victims of 'stalkers' and other individuals who commit acts of harassment. This includes harassment in the workplace.
The PHA defines 'non-sexual harassment' as conduct of a non-sexual nature where the perpetrator knows, or ought to have known, that it causes physical or psychological harm, or inspires a reasonable belief that harm may be caused.
PHA further defines 'sexual harassment' as unwelcome sexual attention from a person who knows, or ought reasonably to know, that the attention is unwelcome. It also broadens the definition of harassment to include electronic communications, such as emails, which can be used as a mechanism to harass persons.
In terms of the PHA, victims of harassment are entitled to have an interim protection order issued against the harasser. A protection order is essentially what the US judicial system refers to as a 'restraining order'. Together with the protection order, a warrant of arrest will be issued against the harasser which will remain in force until such time as the protection order expires or is set aside.
Employers will now have to manage situations where the victim and the harasser may be in the same workplace. If a court grants a protection order against the harasser, the employer will have to take steps to ensure that the protection order is upheld. This may include instituting disciplinary action against the harasser, or transferring the harasser to another department.
In Grobler v Naspers Bpk en n' ander [2004] All SA 160 (CC), a manager was found guilty of sexually harassing an employee. The court found the employer to be vicariously liable for the conduct of the manager because it had failed to take appropriate action to prevent the harassment. The employer was liable for the resultant damages.
It would appear that the PHA enhances the Grobler decision and may justify further instances where employers are held liable for harassment through vicarious liability. Employers are therefore well advised to consider this new piece of legislation when applying their harassment policies, and when hearing disputes between employees
For more information please contact Mark Meyerowitz, Associate, and Shane Johnson, Candidate Attorney, Employment Practice, Cliffe Dekker Hofmeyr at (011) 562 1124 or via e mail at [email protected] or [email protected]
