The Liability of Employers for the Harassment of Employees by Non-Employees

• Jurisdiction: South Africa
• Date: 16 August 2019
• Pages: 407-425
• Published date: 16 August 2019
• Author: KB Calitz

407

THE LIABILITY OF EMPLOYERS FOR THE

HARASSMENT OF EMPLOYEES BY NON-

EMPLOYEES

K B Calitz

BA (Law) LLB LLM LLD

Senior Lecturer, University of Stellenbosch

1 Introduction

In Piliso v Old Mut ual Life Assurance Co1 (“Piliso”) the South African

Labour Cour t ordered an employer to pay damages to a n employee who had

been sexually haras sed by an unk nown person. The victim found crude notes

on a photograph of herself afxed to her workstation on two consecutive days.

She notied the employer only after the second occasion. The e mployer did

not take action and as a result the employee suffered psychological har m. She

claimed damages from the employer, but could not prove that the h arasser

was a co-employee (since non-employees also had access to the workplace).

The Labour Court t hus found that she could rely neit her on common law

vicarious liability, nor on section 60 of the Employment Equity Act 55 of 1998

(“the EEA”), which under certain circumstances holds the employer liable

for the acts of its employees. The court did not contemplate the possibility

that the employer could be held di rectly liable for discr imination in terms

of section 6(1) of the EEA. The Labour Court held that in the absence of

common law and statutory remedies, it was justied in awarding damages

to the employee based on the violation of t he employee’s constitutional right

to fair labour practices.2 The court fou nd that the legal convictions of the

community required the employer to do the following afte r an employee had

been traumat ized in this way:

start a proces s of investigation to nd the pe rpetrator;•

provide the employee with support in the form of counselling to min imize •

the psychological trauma and communicate regularly with the employee on

her needs; and

take all reasonable steps to eliminate or reduce the possibility of the incident •

recurring.3

1 (2007) 28 ILJ 897 (LC)

2 The court relied on Conradie JA’s statements i n Jayiya v MEC for Welfare , Eastern Cape 20 04 2 SA 617

(SCA) 618A:

“Constitut ional damages … might be awar ded as appropr iate relief where no statutor y remedies have

been given or no common law re medies exist Wher e the lawgiver has legislated st atutory mechan isms

for securing const itutional rights, and provid ed of course that they are constitutiona lly unobjectionable,

they must be use d”

3 Piliso v Old Mutual Life Ass urance Co (2007) 28 ILJ 897 (LC ) paras 78-80

(2009) 20 Stell LR 407

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The cou rt found t hat the employer had failed t o meet these requirements

and as a result the employee’s right to fair labour practice s had been violated.

The court accord ingly granted constitutional dam ages.

In contrast to the above decision, the High Court, Supreme Cour t of Appeal

and the Constit utional Court have recently held in a number of de cisions that

litigants may not rely d irectly on a constitutional right where that right is

embodied in ot her legislation.4 According to the Constit utional Court, where

such legislation does not provide a reme dy the correct procedure would be to

challenge the legislation as falling shor t of the const itutional sta ndard.5 A

litigant may thus only bypass enabling legislation if the litigant simultaneously

demonstrates th at the applicable legislation is unconstitutional or inadequ ate.

The reason for this requirement is that, in the abs ence of a con stitutional

challenge to the provisions of enabling legislation, the re sult would be the

creation of two parallel systems of law.6

The deci sion i n Piliso and the criticism against the basis for the decision

raise the qu estion whether there were a ny other remedies available to Ms

Piliso. The Labour Court did state in this case that an employer has a common

law duty to provide a sa fe working place a nd that the employer could be held

liable if the employer’s negligence in failing to prevent sexual harassment

caused psychological harm.7 However, the court did not investigate these

grounds any f urther. Althoug h it certainly is possible that a n employee in

the circ umstances of Ms Piliso could have relied on a com mon law remedy

based on contract or delict, the focus in this article will be on investigating

the possibil ity of holding the employer liable for discrimination in terms of

section 6 of the EEA.8

Another possibility (not mentioned by the cou rt) is that Ms Piliso could

have relied on the Compe nsation for Injur ies and Diseases Act 130 of 1993

(“COIDA”). However, in Ntsabo v Real Security CC9 the Labour Cour t

regarded a claim based on COIDA as i nappropriate in the circumstances of

sexual harassment because, in the cour t’s opinion, this t ype of behaviour

fell outside the cou rse and scope of employment.10 It is also doubtful

4 Minister of Hea lth v New Cli cks SA (Pt y) Ltd (Treatm ent Action Ca mpaign & an other as a mici curiae)

2006 8 BCLR 872 (CC) para 97; NAPTOSA v Minister of Education, Western Cape 2001 2 SA 112 (C) 123;

SANDU v Ministe r of Defence 2007 8 BCLR 863(CC) pa ra 51

5 SANDU v Minister of Defe nce 2007 8 BCLR 863(CC) para 51

6 Ngcukaitobi “Dir ect Allocation of the Constit ution in the L abour Court : A Note on Pilis o v Old Mutual

(2007) 28 ILJ 897 (LC)” 200 7 (28) ILJ 2178 2179

7 The cour t referre d to Media 24 Ltd v Grobler 2005 6 SA 328 (SCA) in whi ch the employer was held

directly li able in terms of the com mon law for failure to a ct on a complaint of sexua l harassment

8 Ms P iliso could possibly als o h ave relied on the Promotion of Equ ality and Prevent ion of Un fair

Discrim ination Act 4 of 2000 (“PEPU DA”), which prov ides that neither the stat e nor a ny person may

discrim inate again st any person (s 6) and that no person may subject any pe rson to hara ssment (s 14) S

5(3) of PEPUDA provide s that it is not applicable t o any person to whom and to the exte nt to which t he

EEA applies Should the a rgument be that the EEA is not applicable due to the fac t that it c ould not be

proved th at the h arasser is an employe e, PEPUDA cou ld be appl icable However, t his cour se of act ion

is not more ad vantageous than i nstituting proceedin gs in terms of s 6 of the EEA aga inst Ms Piliso’s

employer for direct ly discrimina ting against her, as she would a lso have to prove under PEPUDA that the

employer unf airly discri minated aga inst her or that the employe r subjected he r to sexual harassment by

not attendi ng to her complaint

9 (2003) 24 ILJ 2341 (LC)

10 2380

408 STELL LR 2009 3

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