When is an employer liable for sexual harassment in the workplace?

The Labour Court addressed the question of the employer’s vicarious liability in National Union of Metal Workers of South Africa and Another v Passenger Rail Agency of South Africa JS1071/18 (23 September 2021) (the PRASA case).

The judge found that “this matter turns on the application of section 60 of the EEA [Employment Equity Act 55 of 1998]. In my view, this section is a codification of the common law principle of vicarious liability. Vicarious liability occurs in an instance where the wrongful acts of an employee during the course and scope of employment are imputed on the employer”.

60.   Liability of employers.

(1)  If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.

(2)  The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.

(3)  If the employer fails to take the necessary steps referred to in subsection (2), and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.

(4)  Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.

In the PRASA case the court found that two of her managers had indeed sexually harassed a PRASA employee. However, it concluded that the employer was not vicariously liable for its managers’ conduct.

The court considered the circumstances under which an employer is deemed to be a perpetrator of unfair discrimination under section 60 of the Act, notwithstanding the fact that an employee committed the sexual harassment and not the employer.

The court set out the steps an aggrieved employee should take to report a section 60 complaint. They must:

1. Allege a contravention at the workplace,
2. Report the contravention immediately,
3. Prove the alleged contravention,
4. Allege and prove the employer’s failure to take the necessary steps.

Only if an employee proves these four steps will they be entitled to a deeming order of liability. In order to escape liability, the employer must prove that it took the necessary preventative steps.

The judge found that the employee failed to meet the criterion of reporting the contravention immediately within the contemplation of section 60(1) of EEA. She only lodged a grievance two to three years after the sexual harassment took place. As a result, the employee failed to demonstrate step two as set out above.

Given the delay, the court found that PRASA had been deprived of its statutory duty to eliminate unfair discrimination and thus did not contravene section 60.