The expediency of including claims based on disablement caused by sexual harassment in South Africas system of workers compensation
CITATION: Malherbe, K. & Calitz, K. 2016. The expediency of including claims based on disablement caused by sexual harassment in South Africa’s system of workers’ compensation. Stellenbosch Law Review, 27(3):476-506.
The original publication is available at https://journals.co.za/content/journal/jlc_slr
This article investigates whether it is feasible to include compensation for disablement arising from a psychological disorder caused by sexual harassment in the South African workers’ compensation system. The authors argue that in order to protect the constitutional rights of victims of sexual harassment, it is desirable to provide a remedy to victims that is not dependent on proving that the employer is at fault and which is further not dependent on the employer’s financial position. Such a remedy is provided by the Compensation for Injuries and Diseases Act (“COIDA”) for employees who suffer an injury or disease arising out of and in the course of their employment. In the light of the high incidence of sexual harassment in the workplace, it is argued that there is a causal connection between the disablement caused by sexual harassment and the workplace and that the disablement could thus be seen as arising out of and in the course of the employee’s employment. Legal comparison indicates that a number of countries which allow claims based on psychological disablement as a result of sexual harassment in terms of workers’ compensation schemes, do not bar victims from also claiming damages caused by unfair discrimination from their employers. The authors’ recommendations entail that psychological disablement caused by sexual harassment should be treated by South African courts as a disease arising out of employment in terms of the COIDA; that section 35 of COIDA should be amended so that employees may retain claims against their employers based on unfair discrimination and that psychological diseases should be included in schedule 3 of COIDA.