Open letter to South Africa’s students‚ universities and government‚ represented by Minister in the .
THERE'S a way to deal with harassment by a non-employee.
Section 3 of the Code of Good Practice on the Handling of Sexual Harassment Cases defines sexual harassment as the "unwanted conduct of a sexual nature".
The Employment Equity Act 55 of 1998 places a high responsibility on an employer when one of his employee's is sexually harassed by another employee. However, there is no obligation placed on the employer where the harasser is not an employee.
Where an employee (the victim) is sexually harassed by a non-employee, the victim will have a claim against the harasser in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and against the harasser's employer in terms of the law of delict.
Such a situation may arise where the harasser is a client of the employer.
In order for the victim to establish a successful claim against the harasser, he, or she will have to prove that:
l The conduct of the harasser falls within the definition of harassment. This is, in terms of section 1(1); and
l That a case of harassment is proved on the face value of the facts. This is in terms of section 13.
Section 21 (2) of the Act gives the Equality Courts the jurisdiction to order a variety of remedies including payment of damages; issuing a restraining order; or ordering the harasser to apologise to the victim.
In terms of the law of delict, an employer may be vicariously liable for the sexual harassment caused by an employee against a non-employee. Vicarious liability makes the employer liable for the wrongs committed by his employee. For the victim to have a successful claim against the harasser's employer he, or she must prove that:
l All the elements of a delict such as a wrongful act, fault, causation and damages are present;
l The sexual act must be committed within the harasser's scope of employment; and
l The harasser must be an employee of the employer.
In terms of the scope of employment, the employee must act within the duties laid down in his employment contract.
Where an employee acts outside the scope of his employment contract, the employer will not be liable for such an act. However, in the case of Grobler v Naspers 2004(4) SA 220(C) the court held that the employer is liable for the wrongs of his employees, where the risk that they may perform a wrong is foreseeable. Sexual harassment in the workplace would be a foreseeable risk, and thus, the employer would be vicariously liable for such an act.
Essentially, the route a victim of sexual harassment would take would depend on the relief sought.
In order to be successful in a vicarious liability claim, the victim, in proving the elements of a delict, would need to prove some type of loss, either monetary or emotional. However, the second route, in terms of the Promotion of Equality and Prevention of Unfair Discrimination, requires the victim to establish a case of harassment on face value.
Where the victim merely requires an apology, the second route would be the easier option.
lModise is deputy chairperson and McKechnie is a candidate attorney at Eversheds