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Dear Folks
As you will all recall I did promise to
tackle the horny issue of sexual harassment at the workplace and whether
employers could find themselves in trouble, not only from a civil suit
perspective because that has been established, but in terms
section 8 of the
OHS Act. Ofcourse when I say that an employee can sue both the harasser and
vicariously the employer, I am being cagey because there are limits to that
as well.
It has been established that
psychological harm resulting from workplace activities is compensable
although it took a courageous individual, via the High Court
in
Urquhart v Compensation Commissioner [2005]
(E),
to force the hand of a reluctant Compensation Commissioner to
arrive at this point. Traditionally only physical harm has been the focus
of compensation in this country but as crime escalates more and more
employees are going to be victims of crime during the course of their
employment and suffer psychological problems such as Post Traumatic Stress
Disorder. The government seems powerless to protect the inhabitants of the
country from this scourge and employers will undoubtedly find themselves
having to foot the bill when employees become ‘ill’ as result of the malaise
in which we find ourselves. Not that we, as taxpayers, are not footing the
bill already as we ultimately pay for the costs and settlements of all the
successful law suits against the Ministry of Safety and (In)Security as the
State routinely fails to discharge its constitutional of providing us with
security of person. Add to that the cost of business robberies which are on
the increase. Bottom-line is that it’s tough to be an employer in this
country. Employers and, in particular mines, face a barrage of hostile
governmental OHS propaganda which is transparently aimed at a (union)
constituency and a 2009 election when I, and hopefully many others, will be
registering our distaste. I was recently horrified to read a Press Release
from DoL after a construction accident entitled ‘Dept finds flouting of
health and safety laws at site of collapsed wall’ and this even before
an official investigation was launched. In fact DoL must have been looking
at rubble when this statement was released! They even decided, without a
considered thought, that they had determined the cause and hinted at
employer negligence! Employers were once again warned not to put profit
before lives, a default statement that DoL's media department seems stuck
on. And to think I thought Snuki was bad. As media spokesman for DoL and now
still - I think but not for long - head of propaganda at the SABC, he
could at least be excused because of his Eastern Bloc indoctrination. This
led to a negative media frenzy against this particular employer. I honestly
believe that many of the reckless and premature media statements from DoL
and DME are potentially actionable. Obviously the sub judice rule does not
apply to them. The luxury of being unaccountable. But I digress.
What if you as an employer fail to
protect an employee from being sexually harassed at the workplace? Sexual
harassment happens routinely, in fact recently one province alone suspended,
on full pay I assume, 15 managers for this sordid behaviour. This in itself
is a welcome step as you will recall how the Minister of Foreign Affairs
pulled all the stops to protect her sex pest ambassador even after the High
Court had ruled in favour of the complainant. The answer is that you could
be criminally charged for contravening section 8 of the OHS Act (The General
duties of Employers to their Employees) or its equivalent in the MHS Act.
This came to light
in Media 24 Ltd & Another v Grobler (2005)
Supreme Court of Appeals (SCA). Mrs Grobler was
continuously sexually harassed both at the workplace and outside the
workplace by another male employee. She complained about it to a superior
but never lodged a formal complaint. Although, in this particular case, the
court found that the primary sexual harassment, which ultimately led
to the victim suffering psychological damage, occurred outside the workplace
(the ‘last straw that broke the camels back’) and was therefore not a
compensable (workplace) incident, by inference such conduct within the
workplace and not acted upon by the employer could be criminal in terms of
the OHS Act if it has a compensable result.
Section 35 of the
prohibits employees from suing their employers for any workplace injuries
and
section 56 provides
certain individuals with the same civil indemnity. Since sections 35 and 56
did not apply the complainant launched a successful common law civil action
against the culprit individual and, since the court found that the employer
had failed to take action against this particular individual, liability was
visited upon the corporate body as well.
The foundation of the law suit by Mrs
Grobler against the employer was a negligent breach by the employer of a
legal duty to its employees to create and maintain a working environment in
which, amongst other things, its employees were not sexually harassed by
other employees in their working environment. (She also successfully sued
the individual who harassed her). The court found that it is well settled
that an employer owes a common law duty to its employees to take reasonable
care for their safety. This duty cannot in my view be confined to an
obligation to take reasonable steps to protect them from physical harm
caused by what may be called physical hazards. It must also in appropriate
circumstances include a duty to protect them from psychological harm caused,
for example, by sexual harassment by co-employees. Sexual harassment,
whether it be between members of the opposite sex or of the same sex is,
despite the fact that it is often a subject for uncouth jokes, a serious
matter which does require attention from employers. Sexual harassment,
depending on the form it takes, will violate that right to integrity of body
and personality which belongs to every person and which is protected in our
legal system both criminally and civilly. An employer undoubtedly has a duty
to ensure that its employees are not subjected to this form of violation
within the workplace. The victims of harassment find it embarrassing and
humiliating. It creates an intimidating, hostile and offensive work
environment. Work performance may suffer and career commitment may be
lowered. It is indeed not uncommon for employees to resign rather than
subject themselves to further sexual harassment. The psychological effect on
sensitive and immature employees, both male and female, can be severe,
substantially affecting the emotional and psychological well-being of the
person involved. Inferiors who are subjected to sexual harassment by their
superiors in the employment hierarchy are placed in an invidious position.
How should they cope with the situation? It is difficult enough for a young
girl to deal with advances from a man who is old enough to be her father.
When she has to do so in an atmosphere where rejection of advances may lead
to dismissal, lost promotions, inadequate pay rises, etc – what is referred
to as tangible benefits in American Law – her position is unenviable. Fear
of the consequences of complaining to higher authority whether the complaint
is made by the victim or a friend, often compels the victim to suffer in
silence. That sexual harassment of an employee in an inferior position is
despicable is only fully realized when one has to comfort a young girl
crying her heart out in a quiet corner."
The court was of the opinion that the
legal convictions of the community require an employer to take reasonable
steps to prevent sexual harassment of its employees in the workplace and to
be obliged to compensate the victim for harm caused thereby should it
negligently fail to do so. I do not think that the fact that the legislature
has enacted legislation providing a statutory remedy for unfair labour
practices involving sexual harassment justifies a holding that, absent the
statutory remedy (which presumably was intended to be quicker, cheaper and
more convenient than the common law remedy), the common law is defective in
failing to provide a remedy in a situation which cries out for one.
It’s safe to say that any negligent act
or omission on the part of the employer which leads to a compensable
incident involving an employee is, prima facie, a contravention of
section 8. Although condoned sexual harassment is per se not an
employer offence, if it leads to an occupational injury such as Post
Traumatic Stress Disorder, it well could be. Whether DoL would pursue it is
doubtful.
Section 35 of the COID Act and its
equivalent in the mining industry,
the Occupational Diseases in
Mines and Works Act (Odimwa),
has once again been upheld in the
High court .
Click here for
more.
As always
Your Devil’s Advocate
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