Recent judgments coming out of our courts make employers responsible for badly behaved employees even when those employees are not acting in the course and scope of their employment. These decisions represent an extension of the doctrine of vicarious liability and means that employers are going to have to keep a closer eye on their employees’ activities to avoid being exposed to substantial claims. The Mercury recently reported as follows:
Big brother’s watching in the workplace
April 19, 2006
After two recent court decisions, South African employers may now be held liable for the harassing and racist actions of their employees – online and offline.
These judgments signal a significant departure for long held views on vicarious liability of employers.
In the past, employers were only held liable for actions committed by employees in the course of their employment duties.
Now, employers may also be held liable for employee actions far beyond the scope of their employment, such as the abuse of e-mail and internet facilities.
On April 6 2006, the Cape Labour Court ruled in the matter of Xolile Finca v Old Mutual that the employer (Old Mutual) failed to take appropriate action against a white employee who used the k-word towards black fellow employees.
According to the court, such failure by the employer constituted direct and unfair discrimination, and directed Old Mutual to cover Finca’s legal costs and pay a significant amount as compensation.
In a similar case, the Court of Appeal confirmed an earlier decision of the Cape High Court in the matter of Media24 v Grobler, ruling that an employer may be held liable for the harassing actions of employees towards others. In the Media24 judgment, the court found that an employer had a legal duty to ensure a friendly workplace free from, among other things, harassment.
Since Media24 failed to comply with such a duty, the court ordered it to cover Grobler’s legal costs and pay compensation to the amount of R210 000.
It has become increasingly important for companies to actively monitor what their IT infrastructure is being used for over and above the physical working environment. An important component of an employer’s efforts to limit abuse of its IT infrastructure and the various forms of harassment is the employer’s set of policies and procedures. Employers should ensure that adequate IT policies are put in place determining the acceptable use of its IT infrastructure and making provision for the interception and monitoring of all activity on the employer’s network (written consent is required in terms of the Regulation of Interception of Communications Act) and that these policies are regularly updated as well as enforced consistently.
It is also important that employers take steps to ensure that policies addressing sexual harassment as well as other forms of harassment are put in place and employees are educated about what constitutes inappropriate behaviour in the workplace. The Code of Good Practice on Sexual Harassment is particularly helpful in this regard.
We used to laugh at how American companies were sued at the drop of a hat but now it seems South Africa is not far behind. South African employers cannot afford to be complacent anymore.
(via Buys IT)