It is important to understand what is vicarious liability. Generally, vicarious liability may be defined as the strict liability of one person for the abomination 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 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.
Section 60 of the Employment Equity Act gives requirements for an employer’s liability which have been looked keenly by the court in the case of Mokoena v Garden Art (Pty) Ltd (2008) BLLR 428(LC). The Employment Equity Act Prohibits harassment and gives harassment of an employee is a form of unfair discrimination. Section 9 in 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 have to be met before it can be said that the employer is held vicariously liable. The requirements are as follows:
Applying the above legal case law to some incidents such as sexual harassment by a manager 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 situation, 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 and the employer, the sexual harassment took place in the workplaces, the employee subjected to such an incident reported to the employer on several events. In certain cases despite the many reports made the employer ignores the reporting employee.
If the employer further fails to terminate the conduct or simply fails to conclude with the provisions of the EEA the employer has also failed to take reasonable ways to ensure that the harasser would not act in contravention of the Act. Hence, the employer is vicariously liable. The employee will have to prove that he/she has suffered abiogenetic loss as a result of sexual harassment to raise a valid claim against the employer. This will enable the court to make an order against the employer for the damages. However, the plaintiff will have to show that the requirements for vicarious liability have been met. Such issues are dealt with by lawyers in South Africa
After successfully proving the existence of the harassment, the court may make any remedial orders as listed in section 21 of the PEPUDA. In terms of 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 unreasonable. It has been established that sexual harassment is a valid cause of action and the employer may be held vicariously liable.
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