Can an employer be held vicariously liable for not successfully taking steps to halt the sexual harassment from happening to an employee at the workplace?

At the outset, it is important to understand what vicarious
liability is. In general terms, vicarious liability may be defined as the
strict liability of one person for the delict of another in this instance the
liability of the employee is implicated to an employer.

Harassment is prohibited by section 6(3) of the Employment
Equity Act 55 of 1998 read with Section 11 of the Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000 prohibits sexual harassment.
Our courts have ruled that sexual harassment is prohibited in the workplace and
is punishable by law. Section 60 of the Employment Equity Act provides
requirements for an employer’s liability which have been looked closer by the
court in the case of Mokoena v Garden Art
(Pty) Ltd (2008) BLLR 428(LC).

Harassment means unwanted conduct which is persistent or
serious and demeans, humiliates or creates a hostile or intimidating
environment or is calculated to induce submission by actual or threatened
adverse consequences and which is related to-

Section 11 of the Promotion of Equality and Prevention of
Unfair Discrimination Act provides that no person may subject any person to
harassment. The Employment Equity Act Prohibits harassment and provides that
harassment of an employee is a form of unfair discrimination. Section 9 of the
Constitution of the Republic of South Africa 1996 prohibits unfair
discrimination. In terms of Section 60 of
EEA 55 OF 1998
and in terms of the case of Mokoena and Gardens (Pty) Ltd (2008) BLLR 42B LC, the following are
the requirements which must be met before it can be said that the employer is
held vicariously liable. The requirements are as follows:

Applying the above legislation and case law to such incidents such as sexual harassment by a manager (employee) at the workplace, the conduct of the manager would fit within the scope of the definition of harassment as given above in section 1 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Therefore the manager’s conduct constitutes sexual harassment. In a case where the employer was silent about the sexual harassment he will be held in contravention of section 11 of PEPUDA by indirectly subjecting the employee to sexual harassment by failing to take actions to successfully stop the sexual harassment. However, in the present circumstances the requirements for vicarious liability are met in accordance with section 60 of EEA. This is brought by the existence of the employment relationship between the manager who committed the harassment (employee) and the employer; the sexual harassment took place in the work premises, the employee subjected to such an incident reported to the employer on several occasions. In certain cases despite the numerous reports made the employer ignores the reporting employee. (This makes the employer come to know of the incident)

If the employer further fails to terminate the conduct or
simply fails to comply with the provisions of the EEA the employer has also
failed to take reasonable measures to ensure that the harasser would not act in
contravention of the Act. Therefore the employer is vicariously liable.

The employee will have to prove that he/she has suffered
patrimonial loss as a result as sexual harassment to raise a valid claim
against the employer. That will enable the court to make an order against the
employer for the damages suffered. However, the plaintiff will have to show
that the requirements for vicarious liability have been met.

After successfully proving the existence of the requirements,
the court may make any remedial orders as listed in section 21 of the PEPUDA.
In terms this section the court may make an order to the employer to make payments
for damages in respect of any proven financial loss, impairment of dignity and
other results which may have occurred as a result of the sexual harassment.

Section 16 of the Protection From Harassment Act provides
that the court may only make an order as to costs against any party if it is satisfied
that the party in question has acted frivolously, vexatious and unreasonably.

In conclusion, it has been established that sexual harassment
is a valid cause of action and the employer may be held vicariously liable.

By: Portia S. Dlamini