Sexual Harassment and Other Misconduct: Employer Risk
Employers beware! The appointment and promotion of managers and supervisors is much more risky than you thought.
Since no one is a perfect fit, we are used to assessing whether a candidate’s shortcomings can be dealt with through training and coaching. A lack of technical and people-management skills is the risk we know about. But what if an employee acts against policy and outside of workplace rules and regulations. Do we have to worry about those risks too? Recent court cases suggest we should.
In 2013, the Minister of Defence was successfully sued when a member of the public was shot with a stolen defence force rifle during an armed robbery (Minister of Defence v Von Benecke, 2013 (SCA)). The weapon’s parts were stolen by a defence force employee who was in charge of the weapons and ammunition at the time. He sold them on to the bad guys who used them in the robbery. But how can employers be held liable if an employee steals from them?
In 2014, the Minister of Police was also successfully sued after a member of the public was shot by a policewoman with a SAPS firearm (Pehlani v Minister of Police, 2014). It was a lover’s tiff. The policewoman booked out a firearm for her beat duty. She then deserted her post, went to her ex-lover’s place of work and fired six shots at him, failing to kill him (she had earlier tried to set him alight). Again, an employee acting against her organisation’s rules and outside of her designated place of operation. What has it to do with the employer?
This vicarious liability of the employer was clearly explained in two cases of sexual harassment (Grobler v Naspers Ltd and Another 2004 and E v Ikhwezi Municipality 2016). In both cases a manager sexually assaulted a secretary. In neither case did anyone dispute that the managers had acted entirely on their own and against the employer’s rules and policies. However, the employer was held to be vicariously liable.
In the Grobler case, Judge Nel said that the working relationship between manager and secretary was one that created or increased the inherent risk of sexual harassment and that, therefore, it was fair to hold the employer vicariously liable for the sexual harassment. He quoted, with approval, a Canadian case where the judge held that ‘when an employer places an employee in a special position of trust, he or she bears the responsibility of ensuring that the employee is capable of trust.’
The case went on to the Supreme Court of Appeal (Media 24 Ltd and Another v Grobler, 2005) where Judge Farlam said that an employer’s duty to take reasonable care for the safety of its employees cannot be restricted to protection from physical hazards. He went on: ‘It must also in appropriate circumstances include a duty to protect them from psychological harm caused, for example, by sexual harassment by co-employees.’
In the Ikhwezi Municipality case, the judge said: ‘If the employer has given the alleged harasser authority to take tangible employment actions or to control the conditions under which subordinates do their daily work, … vicarious liability is in order, for the superior-subordinate working arrangement facilitating the harassment is of the employer’s making.’
Employers beware. Hiring, assessing and training employees is not just about technical skills. Ongoing assessments must determine whether an employee is fit to manage a weapons store, a firearm or a manager-employee relationship.
The responsibilities of management (and its inherent risks) must be taken seriously by the organisation. Sexual harassment training and other interventions must be part of an ongoing process of keeping the safety of employees on top of the agenda.
What will you do?
What risks do you need to assess?
[Picture from The Daily Beast: bit.ly/Waitressing_SH]