The liability of employers for the harassment of employees by non-employees

Calitz, Karin (2009-03)

CITATION: Calitz, K.B. 2009. The liability of employers for the harassment of employees by non-employees. Stellenbosch Law Review = Stellenbosch Regstydskrif 20(3):407-425.

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Employees who suffer work-related harassment by non-employees in circumstances in which the employer does not protect them can neither institute action against their employer on the basis of vicarious liability, nor in terms of section 60 of the Employment Equity Act (EEA). Section 60 of the EEA renders the employer liable for certain acts of his employees. In Piliso v Old Mutual Life Assurance Co (2007) 28 ILJ 897 (LC) the Labour Court held such a (passive) employer liable on the basis of the infringement of the employee-victim's constitutional right to fair labour practices. In the light of criticism against direct reliance on constitutional rights where the right is embodied in other legislation, a more appropriate approach would be to hold the employer directly liable for discriminating against an employee in an employment practice in terms of section 6(1) of the EEA. An examination of foreign jurisdictions (the United States, the United Kingdom and Australia), reveals that employers who do not take action to protect victim-employees against work-related harassment by non-employees, are held directly liable in terms of anti-discrimination legislation. This article proposes that the same approach be adopted in the South African context.

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