According to press reports (LegalBrief and News24) there was an incident in a Mall where Ndebele activists were required to leave a Mall for being ‘inappropriately’ dressed.

Issues and questions:

  • Employer’s vicarious liability for the actions of Mall manager.
  • Violation of customers’ cultural rights;
  • Need for policy and training; and
  • Validity and fairness of reason to suspend/dismiss the manager.

CRL Commission

The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Commission) found, among other things, that:

  • the Mall was accountable for the conduct of the manager regarding the activists and violated their cultural rights;
  • there was a failure to know and understand cultural diversity; and
  • the suspended manager was a victim of a lost heritage created by past inequalities and should be reinstated.

Findings of Chapter Nine institution

  • Customers’ cultural rights were violated.
  • Employer failed to adopt policies providing for observation of cultural rights and cultural diversity not only internally but also externally.
  • Employer failed to train its employees about cultural rights and cultural diversity.

Rulings of CRL Commission:

  • Manager to apologise to activists (which he duly did and it was accepted).
  • Employer to reinstate manager because he was also a victim of a ‘lost heritage created by past inequalities’.
  • Employer given six months to review its policies and practices and report back to CRL Commission.
  • Employer required to ’empower’ employees with cultural and religious diversity training.
  • Employer ‘requested’ to hold a cultural exhibition on 24 March every year in all its provincial Malls to promote awareness of the diversity of cultural, religious, and linguistic communities and their rights.

Comment

The time has long since passed for senior management to take positive steps to formulate suitable policies and procedures to cover a vast range of activities and to be able to establish clearly and convincingly that the necessary steps have been taken to train everyone accordingly.

Senior management (employers) are legally obliged to create and maintain safe working environments to ensure that employees are protected against anything that impacts adversely on fundamental and constitutional rights, including dignity and the right not to be harassed in any way.

Now that many employees are working from home or elsewhere it is necessary to give more thought to what steps senior management need to take to deal with the new normal.

Authority

Media 24 Ltd v Grobler (301/2004) [2005] ZASCA 64; [2005] 3 All SA 297 (SCA) (1 June 2005) per Farlam JA.

“BREACH OF LEGAL DUTY

[64] The respondent’s second cause of action, it will be recalled, was a negligent breach by Tydskrifte 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.

[65] It is well settled that an employer owes a common law duty to its employees to take reasonable care for their safety (see, eg, Van Deventer v Workman’s Compensation Commissioner 1962 (4) SA 28 (T) at 31B-C and Vigario v Afrox Ltd 1996 (3) SA 450 (W) at 463F-I).

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.”

. . . .

“[68] It is clear in my 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.”

. . .

“[70] . . . . In the present case I am satisfied that the duty allegedly breached in this case was not dependent upon any specific term of the contract of employment between Tydskrifte and the respondent, whether or not supplemented by legislative enactment.”

. . . .

“[71] . . . In the circumstances his [the manager’s] failure to deal with the matter when the respondent reported it to him was culpable. He was in a managerial position and Tydskrifte, his employer, was clearly vicariously liable for his failure to act in this regard.”

. . .

“[76] . . . . As appears from the summary of this defence [explained earlier in the judgment] as pleaded by the first appellant (set out in paras [9] and [29] above), the first appellant relied upon items 2(1)(a) and 3 of Schedule 7 to Act 66 of 1995 – which items were then still part of the Schedule – for the contention that the present dispute fell within the exclusive jurisdiction of the Labour Court.

Item 3 dealt with disputes about unfair labour practices, so that a claim brought thereunder for harassment would be based on an allegation that the harassment constituted an unfair labour practice. But, as this court pointed out in Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA) para [27] at 261E-H, a dispute about the unlawfulness of an employer’s conduct (in that case a dismissal) as opposed to its unfairness is not a ‘matter’ required to be adjudicated by the Labour Court as contemplated by s 157(1) and accordingly the High Court’s jurisdiction is not excluded. By parity of reasoning, a delictual claim such as the present will also not be excluded.

[77] It remains for me to deal with the second jurisdictional defence as set out in paras [11] and [31] to [34] above, viz that based on s 35(1), read with s 65(1)(b), of Act 130 of 1993. In this case, it will be recalled, I have found that the psychological disorder from which the respondent has been suffering was ultimately contracted because of the harassment which occurred during the flat incident. That incident did not occur in the course of the respondent’s employment but rather while she was engaged in her own private activity, namely trying to sell her flat to the second appellant. It may well be that employees who contract psychiatric disorders as a result of acts of sexual harassment to which they are subjected in the course of their employment can claim compensation under s 65 but those are not the facts in this case and I need express no opinion thereon. I am satisfied that the second jurisdictional defence is also without merit.”