There have been a number of cases recently, in the Labour Court, the High Court and the Constitutional Court, that deal with an employer's liability for the acts of its employees. A number of these cases have been brought by victims of sexual harassment, where they have sued their employers (rather than the perpetrator of the harassment), claiming that the employers had not done enough either to prevent the harassment or to address its consequences. Section 60 of the Employment Equity Act assists employees to the extent that it provides that in certain circumstances, an employer is deemed to have contravened the Act if it fails to take necessary steps after being informed that an employee, while at work, contravened the Act. The application of this provision was considered in Piliso v Old Mutual Life Assurance and others (unreported, 5 December 2006), the Labour Court considered a claim by an employee of harassment after she had discovered crude notes on a photograph of herself, left at her workstation. She complained that the company did not respond adequately to her raising the matter with management.

In so far as the claim rested on the provisions of section 60, the Labour Court held that the complainant had never alleged that while at work, an employee of the company had contravened the Act. For that reason, section 60 did not apply. However, that was not the end of the case. The complainant had been sufficiently prudent to claim delictual damages, because, she alleged, her employer had failed to provide a safe working environment as it was obliged, at common law, to do.

There was no disagreement that what had occurred was an act of sexual harassment. The issue was whether another employee of the company had committed the act of harassment, because, at common law, an employer is vicariously liable only for the acts of its employees, not other parties. On the facts, the Court found that the complainant had not proved that the perpetrator was an employee, or that the perpetrator was acting within the course and scope of employment. For that reason, the common law claim for damages failed.

The Court then turned to the third claim, one for 'constitutional damages'. Here, it was argued that the Constitution, in the form of a right to fair labour practices, afforded a remedy where the EEA and the common law did not. The focus of the argument was that the company had not done enough to promote equality in the workplace, as it had failed to eliminate unfair discrimination in its workplace. Further, the company was accused of failing to ensure that the working environment was safe, and of failing properly to investigate the incident.

After a review of the evidence, the Court concluded that the company's conduct in failing to do enough to address the complaint of sexual harassment had violated the applicant's constitutional right to fair labour practices. Fair labour practices require an employer to take all reasonable steps, as soon as possible, to eliminate or reduce any possibility of a reoccurrence of an act of harassment. Prompt action and investigation to identify any perpetrator of harassment is necessary. Fair labour practices also require the victim of harassment to be supported and assisted with counselling and consultation. The company's response to the incident was found to have fallen short of this standard. For this reason, the company was ordered to pay the complainant R45 000 as 'constitutional damages'.

Summary produced by Perrott Van Niekerk Woodhouse Inc.

If you look at the sentence and say to yourself "this sentence is so excessive (or so lenient that I cannot in all good conscience allow it to stand," it is open to interference. If you think merely that you would not have imposed the same sentence, it is not. Unless the sentence makes you whistle, it must stand. The general principle underlying this approach is that a court is reluctant to interfere on appear with the exercise of discretion if the only ground for the suggested interference is its unreasonableness.

Cited in COUNTY FAIR FOODS (PTY) LTD v CCMA (LAC)

Perrott, Van Niekerk and Woodhouse offer five training courses aimed at both SMME's and corporates. Andre van Niekerk, responsible for the overseeing of each course, is an accredited assessor in terms of the Skills Development legislation.

Applications for accreditation of these courses has been submitted and are awaiting the processing thereof. These courses include: Arbitration Training, Chairing Disciplinary Enquiries, Applying the Basic Conditions of Employment ("BCEA"), Labour Law for Managers, and Restructuring Business - Transfers of a business, Outsourcing & Retrenchment

Collective Bargaining Law
Author: Chris Todd

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South Africa's Labour Relations Act of 1995 ("LRA") regulates the relationship between trade unions and employers. It guarantees basic organizational rights to trade unions where they previously had none.

This guide to the law of unfair dismissal, now in its third edition, explains the law with authority and in plain language. It is a guide, for trade unionists and employer representatives (and their legal representatives), HR practitioners and law students. The authors answer the following questions - who is an employee?; what is a dismissal?; what are the requirements for a fair dismissal?; what are employers' and employees' respective rights and obligations?; if I have been unfairly dismissed what procedures do I follow, and what are my remedies?

The 8th edition of this publication has been extensively supplemented and revised to incorporate the latest case law on the amended Labour Relations Act, the Basic Conditions of Employment Act and the Employment Equity Act.