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

Calitz, K B (2009)


INTRODUCTION: In Piliso v Old Mutual Life Assurance Co (“Piliso”) the South African Labour Court ordered an employer to pay damages to an employee who had been sexually harassed by an unknown person. The victim found crude notes on a photograph of herself affixed to her workstation on two consecutive days. She notified the employer only after the second occasion. The employer did not take action and as a result the employee suffered psychological harm. She claimed damages from the employer, but could not prove that the harasser was a co-employee (since non-employees also had access to the workplace). The Labour Court thus found that she could rely neither 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 directly liable for discrimination 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 justified in awarding damages to the employee based on the violation of the employee’s constitutional right to fair labour practices.

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