OHS Chat & Skinner Newsletters. Written by the Devil's Advocate. All newsletters will be eventually posted.
As you will all recall I did promise to tackle the horny issue of sexual harassment at the workplace and whether employers could find themselves in trouble, not only from a civil suit perspective because that has been established, but in terms section 8 of the OHS Act. Ofcourse when I say that an employee can sue both the harasser and vicariously the employer, I am being cagey because there are limits to that as well. It has been established that psychological harm resulting from workplace activities is compensable although it took a courageous individual, via the High Court in Urquhart v Compensation Commissioner  (E), to force the hand of a reluctant Compensation Commissioner to arrive at this point. Traditionally only physical harm has been the focus of compensation in this country but as crime escalates more and more employees are going to be victims of crime during the course of their employment and suffer psychological problems such as Post Traumatic Stress Disorder. The government seems powerless to protect the inhabitants of the country from this scourge and employers will undoubtedly find themselves having to foot the bill when employees become ‘ill’ as result of the malaise in which we find ourselves. Not that we, as taxpayers, are not footing the bill already as we ultimately pay for the costs and settlements of all the successful law suits against the Ministry of Safety and (In)Security as the State routinely fails to discharge its constitutional of providing us with security of person. Add to that the cost of business robberies which are on the increase.
Bottom-line is that it’s tough to be an employer in this country. Employers and, in particular mines, face a barrage of hostile governmental OHS propaganda which is transparently aimed at a (union) constituency and a 2009 election when I, and hopefully many others, will be registering our distaste. I was recently horrified to read a Press Release from DoL after a construction accident entitled ‘Dept finds flouting of health and safety laws at site of collapsed wall’ and this even before an official investigation was launched. In fact DoL must have been looking at rubble when this statement was released! They even decided, without a considered thought, that they had determined the cause and hinted at employer negligence! Employers were once again warned not to put profit before lives, a default statement that DoL's media department seems stuck on and is suggestive of wilful or callous conduct on the part of employers. And to think I thought Snuki was bad. As media spokesman for DoL and now still - I think but not for long - head of propaganda at the SABC, he could at least be excused because of his Eastern Bloc indoctrination. This led to a negative media frenzy against this particular employer. I honestly believe that many of the reckless and premature media statements from DoL and DME are potentially actionable. Obviously the sub judice rule does not apply to them. The luxury of being unaccountable. But I digress.
What if you as an employer fail to protect an employee from being sexually harassed at the workplace? Sexual harassment happens routinely, in fact recently one province alone suspended, on full pay I assume, 15 managers for this sordid behaviour. This in itself is a welcome step as you will recall how the Minister of Foreign Affairs pulled all the stops to protect her sex pest ambassador even after the High Court had ruled in favour of the complainant. The answer is that you could be criminally charged for contravening section 8 of the OHS Act (The General duties of Employers to their Employees) or its equivalent in the MHS Act. This came to light in Media 24 Ltd & Another v Grobler (2005) Supreme Court of Appeals (SCA). Mrs Grobler was continuously sexually harassed both at the workplace and outside the workplace by another male employee. She complained about it to a superior but never lodged a formal complaint. Although, in this particular case, the court found that the primary sexual harassment, which ultimately led to the victim suffering psychological damage, occurred outside the workplace (the ‘last straw that broke the camels back’) and was therefore not a compensable (workplace) incident, by inference such conduct within the workplace and not acted upon by the employer could be criminal in terms of the OHS Act if it has a compensable result. Section 35 of the prohibits employees from suing their employers for any workplace injuries and section 56 provides certain individuals with the same civil indemnity. Since sections 35 and 56 did not apply the complainant launched a successful common law civil action against the culprit individual and, since the court found that the employer had failed to take action against this particular individual, liability was visited upon the corporate body as well.
The foundation of the law suit by Mrs Grobler against the employer was a negligent breach by the employer of a legal duty to its employees to create and maintain a working environment in which, amongst other things, its employees were not sexually harassed by other employees in their working environment. (She also successfully sued the individual who harassed her). The court found that it is well settled that an employer owes a common law duty to its employees to take reasonable care for their safety. This duty cannot in my view be confined to an obligation to take reasonable steps to protect them from physical harm caused by what may be called physical hazards. It must also in appropriate circumstances include a duty to protect them from psychological harm caused, for example, by sexual harassment by co-employees. Sexual harassment, whether it be between members of the opposite sex or of the same sex is, despite the fact that it is often a subject for uncouth jokes, a serious matter which does require attention from employers. Sexual harassment, depending on the form it takes, will violate that right to integrity of body and personality which belongs to every person and which is protected in our legal system both criminally and civilly. An employer undoubtedly has a duty to ensure that its employees are not subjected to this form of violation within the workplace. The victims of harassment find it embarrassing and humiliating. It creates an intimidating, hostile and offensive work environment. Work performance may suffer and career commitment may be lowered. It is indeed not uncommon for employees to resign rather than subject themselves to further sexual harassment. The psychological effect on sensitive and immature employees, both male and female, can be severe, substantially affecting the emotional and psychological well-being of the person involved. Inferiors who are subjected to sexual harassment by their superiors in the employment hierarchy are placed in an invidious position. How should they cope with the situation? It is difficult enough for a young girl to deal with advances from a man who is old enough to be her father. When she has to do so in an atmosphere where rejection of advances may lead to dismissal, lost promotions, inadequate pay rises, etc – what is referred to as tangible benefits in American Law – her position is unenviable. Fear of the consequences of complaining to higher authority whether the complaint is made by the victim or a friend, often compels the victim to suffer in silence. That sexual harassment of an employee in an inferior position is despicable is only fully realized when one has to comfort a young girl crying her heart out in a quiet corner."
The court was of the opinion that the legal convictions of the community require an employer to take reasonable steps to prevent sexual harassment of its employees in the workplace and to be obliged to compensate the victim for harm caused thereby should it negligently fail to do so. 'I do not think that the fact that the legislature has enacted legislation providing a statutory remedy for unfair labour practices involving sexual harassment justifies a holding that, absent the statutory remedy (which presumably was intended to be quicker, cheaper and more convenient than the common law remedy), the common law is defective in failing to provide a remedy in a situation which cries out for one'.
It’s safe to say that any negligent act or omission on the part of the employer which leads to a compensable incident involving an employee is, prima facie, a contravention of section 8. Although condoned sexual harassment is per se not an employer offence, if it leads to an occupational injury such as Post Traumatic Stress Disorder, it well could be. Whether DoL would pursue it is doubtful.
Section 35 of the COID Act and its equivalent in the mining industry, the Occupational Diseases in Mines and Works Act (Odimwa), has once again been upheld in the High court.