This article was written by Steven Adams, an Associate and Hermann Nieuwoudt, a Director at Norton Rose Fulbright South Africa

The Eastern Cape High Court has developed the common law and expanded the circumstances in which an employer may be held vicariously liable for its employee’s sexual harassment of another employee.

Phil-Ann Erasmus was employed by the Ikweze Municipality as an Archives Clerk. Her immediate superior was Mr Jack.Erasmus was based at the Municipalities Jansenville office and Jack at its Klipplaat office. In exercising his duties Jack often visited the Jansenville office and the two often worked together after hours.

On 16 November 2009, Jack entered Erasmus’s office, bent down with his head over hers and attempted to insert his tongue into her mouth. Erasmus unsuccessfully tried to push Jack away, and was only able to clench her teeth during the ordeal to prevent Jack from forcing his tongue in her mouth. After a minute or so, Jack desisted and left Erasmus’s office.

Erasmus reported the sexual assault to the Municipality’s Acting Municipal Manager and Mayor. Jack was instructed to remain at the Municipality’s Klipplaat office and not to visit the Jansenville office. The Municipality initiated disciplinary proceedings against Jack and he was found guilty of misconduct. However, the disciplinary hearing chairperson did not dismiss Jack, but imposed a sanction of suspension without pay for two weeks.

The Municipality was dissatisfied with the sanction; but acting on incorrect legal advice, chose not to review the chairperson’s decision.

Erasmus was subsequently diagnosed with posttraumatic stress disorder and eventually resigned from her employment with the Municipality. As a result of the assault Erasmus claimed damages of R4 028 416 jointly and severally from the Municipality and Jack.

Whilst admitting that it had a duty to protect Erasmus, the Municipality denied that Jack was acting in the course and scope of his employment when the incident occurred. The Municipality also claimed that it had taken all reasonable steps to protect Erasmus’s rights after the incident by confining Jack to its Klipplaat office with instructions not to contact Erasmus and by instituting disciplinary proceedings against him.

In order to determine if the Municipality should be held vicariously liable for Jack’s conduct, the court was required to consider whether there was a sufficiently close link between Jack’s unlawful conduct and the business of the Municipality.

The court was satisfied that Jack had acted in pursuit of his own salacious objectives when he assaulted Erasmus. However, the incident had occurred while Erasmus was at work rendering her services. Erasmus trusted Jack implicitly due to his position of authority. It was due to the nature of their employment relationship that the opportunity presented itself to Jack.  Jack was given the authority to control the conditions under which Erasmus did her daily work. This included working with Erasmus closely, at times after hours, at the Municipal offices.  It was the employment relationship which facilitated Jack’s actions.

Where an employer places an employee in a special position of trust, the employer bears the responsibility of ensuring that the employee is capable of trust. That trust “forged a causal link” between Jack’s position and the wrongful act.

The court held that Jack, through his actions, had infringed Erasmus’s human dignity, right to privacy and her bodily integrity.

While bearing in mind that it should guard against overzealous judicial reform, the court held that having regard to the objects of Section 39(2) of the Constitution, the common law should be developed and extended to accommodate holding the Municipality vicariously liable for Jack’s conduct. The court accordingly held that the Municipality and Jack were jointly and severally liable for Erasmus’s the damages as a result of her sexual assault.