Employment law update – Vicarious liability for sexual harassment

September 1st, 2022

In CS and Another v Swanepoel and Others [2022] 7 BLLR 660 (WCC) the second plaintiff in this matter, hereinafter referred to as the complainant, instituted a claim for damages alleging that when she was 12 years old she was raped in the staff toilet by the acting principal of the Vleiplaas Primary School. She instituted her claim for damages against the acting principal, the school, and the Member of the Executive Council (MEC) for Education of the Western Cape. The acting principal instituted a counterclaim for damages alleging that he was falsely accused of rape and had not been found guilty of disciplinary charges against him.

The court had to determine whether the acting principal was guilty of sexual assault and, as such, liable for damages to the complainant. The court also had to consider whether the Education Department (the Department) and the school would be liable for damages on the basis that there was a breach of a legal duty to protect the complainant from harm. The court, therefore, had to determine whether there was in fact a legal duty to protect the complainant and whether it was reasonable to impose liability on the school and department in the circumstances.

The onus was on the complainant to prove the alleged sexual assault on a balance of probabilities. The court found that the complainant had discharged this onus and proven that she had been raped by the acting principal. This was because her version was corroborated by two independent witnesses, who confirmed that on the day in question, they saw the complainant leave the staff toilet and the acting principal followed her out with a wash rag in his possession, as alleged by the complainant. It was found that there was no reason for the witnesses to lie about what they saw. The acting principal, on the other hand, was not a good witness and came across as evasive. Furthermore, there was evidence that the acting principal had previously been convicted of sexual assault in relation to a minor but had failed to declare this in his application for his position. The court held that the complainant succeeded in proving that the acting principal committed a delictual act in the form of a physical, bodily assault on her of a sexual nature, which caused her both physical, as well as psychological harm. Furthermore, it was evident that she was suffering from post-traumatic stress disorder because of the assault. The acting principal was accordingly liable for damages.

As regards the liability of the Department and school, the case was premised on an alleged omission to properly vet the acting principal and the wrongful, negligent breach of a legal duty to protect the complainant from harm. The court placed a lot of emphasis on whether there was a legal duty on the Department and school to properly vet the acting principal for criminal activity, particularly in light of the fact that the position entailed working with children. When the acting principal had initially applied for a position as an educator, he completed a Z83 application form, which is a generic form that is commonly used to apply for positions in the wider public service. On the Z83 form an applicant is required to disclose whether they have ever previously been found guilty of any criminal offence. There is no qualification that such an offence must have arisen in the course and scope of employment. The acting principal provided a negative answer in response to this question. Given his previous conviction for sexual assault, the acting principal conceded that this response had been wrong. He conceded that if he had answered the question correctly and had provided particulars of his previous conviction he would probably not have been appointed as his conviction would have had a negative impact on his suitability to work with children. However, he claimed that he had simply made a ‘mistake’ when completing the form and had not deliberately filled in the form incorrectly in an effort to hide his criminal record.

Reference was made to a number of cases where it was held that there is a legal duty to act positively to prevent harm, especially to children, as well as the common law principle that educators and those who are in charge of schools are under a duty to exercise the same level of care towards the children that have been entrusted to them in loco parentis, as a reasonably careful father or mother would towards their own children. The court held that the Department, as the employer of the acting principal, was under a legal duty to vet the acting principal before accepting him as its employee in order to ensure that he had the requisite qualifications to teach children and that he was a suitable and fit person to work with children who would not pose a potential threat to children. It was held that the Department should have identified the potential risk of children being sexually assaulted and it should have taken reasonable steps to prevent such harm by conducting a thorough screening and vetting of the acting principal. It was found that the department negligently failed to discharge that duty and the MEC should be held liable for the wrongful conduct that arose because of that failure.

As regards liability of the school, in terms of the South Africa Schools Act 84 of 1996 the school governing body was responsible for the governance of the school, and it was the Department that was responsible for its management. No evidence was lead that the school had any duty to screen and vet the acting principal prior to his appointment and, therefore, the school was not held liable.

In conclusion, the Department and the acting principal were held liable to the complainant for damages that she could prove. The acting principal was ordered to pay the costs of the application on the scale as between attorney and client and the Department on the party and party scale. The court also recommended disciplinary action and criminal prosecution in respect of the acting principal.

Dismissal for absence from work

In Air Liquide (Pty) Ltd v Nkgoeng NNO and Others [2022] 7 BLLR 636 (LAC), the employee was absent from work and was contacted by the branch manager regarding his whereabouts. The employee claimed that he was in fact on site and gave a description of his whereabouts, but his branch manager could not find him there. The branch manager later phoned the employee and instructed him to come and see him. The employee alleged that he did go and see his branch manager but could not find him. The employee was dismissed for gross dishonesty for lying about being at work and gross insubordination for failure to obey an instruction to meet his branch manager. The employee referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) and the arbitrator accepted the employee’s claim that he was at work. The dismissal was accordingly found to be substantively unfair, and reinstatement was ordered. This decision was based on the fact that the arbitrator accepted that a printout from the canteen was proof that the employee had been at work.

The employer took the matter on review to the Labour Court (LC) but the LC dismissed the review application. Both the CCMA and LC found that the printout from the canteen was proof of the employee’s attendance at work as the veracity of the canteen printout had not been challenged. On the other hand, the employee had conceded that the depot was so small that there was no way his manager would not have seen him if he had been at work on that day. This printout was for the canteen and was not an actual attendance register for the worksite. Furthermore, no evidence was led regarding how close the canteen was to the worksite. Based on this, the Labour Appeal Court (LAC) held that no reasonable arbitrator could have reached this decision based on the printout from the canteen.

Furthermore, the CCMA arbitrator had made a finding that the employer’s witnesses were unreliable, and the employee was a credible witness, but he set out no legal basis for making such a credibility finding. The LAC found that these findings were not rationally connected with the evidence. In this regard, the arbitrator failed to consider that the employee corroborated the evidence of the employer’s witnesses and, therefore, the LAC was of the view that the employer’s witnesses were more reliable than the employee. In this regard, the employee confirmed that he was not seen at work on the day in question, he confirmed that his manager had not seem him and that the workplace was so small that there was no way his manager would not have seen him if he was present. Furthermore, he confirmed that he had told his manager that he was at boiler four and that his manager had not found him at boiler four and that he did not go and see his manager after being requested to do so. He also confirmed that he only signed the attendance register the next day. The LAC found that this evidence led to a finding that the employee was not present at work and the LC should have found that the arbitrator’s finding was not rationally connected to the evidence before him. This was, therefore, not a decision that a reasonable decision maker could make, and the arbitration award was set aside. The LAC found that the dismissal was substantively and procedurally fair and no order was made as to costs.

Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.

This article was first published in De Rebus in 2022 (Sept) DR 32.