GRAHAMSTOWN - HIGH COURT ORDERS COUNCIL TO PAY FORMER EMPLOYEE WHO WAS SEXUALLY ASSAULTED

The Grahamstown High Court has ruled that Ikwezi municipality is vicariously liable for damages caused to a former employee who was sexually assaulted by corporate services manager Xola Jack.

The municipality is now on the hook for a damages payout to the former employee, which could be as much as R4-million.

The issue of damages will be argued in a separate hearing.

The judgment breaks new legal ground on vicarious liability and could have far-reaching implications for employers.

A municipal employee said Jack had sexually assaulted her after he cornered her in her office and tried to force his tongue into her mouth. The distressed and anxious woman had filed a complaint against him. Despite this, she was regularly subjected to meeting Jack.

Jack had denied in writing that he had molested her but chose not to give evidence in his own disciplinary hearing. Five months after the incident he was found guilty of serious misconduct.

However, despite a previous finding of serious misconduct related to the theft of municipal property, the presiding officer decided against dismissal. He was instead suspended for two weeks without pay.

Jack pleaded guilty in the magistrate's court to crimen injuria and got a suspended sentence. Despite the findings in both a disciplinary and criminal hearing, the woman was again constantly subjected to meeting Jack at work.

A psychiatrist prescribed medication for her post traumatic stress disorder but she testified that the sight of Jack still reduced her to tears.

She suffered from nightmares and insomnia and, eventually, in October 2010 she resigned.

Judge Jeremy Pickering said constitutional norms required that the common law be developed and extended to accommodate the facts in this matter and that the municipality should be held vicariously liable for Jack's conduct.

He said there had been a growing realisation and appreciation of the prevalence and devastating effects of sexual harassment in the workplace

It was unreasonable that the presiding officer had not considered dismissal an appropriate sanction for Jack, especially in the light of his previous warning for theft.

"[Jack's] conduct towards [his victim] was an intolerable, despicable and violent abuse of his position of authority over her and a two-week suspension in no way reflected the gravity of his offence."

Pickering said while Jack had molested his victim for his own prurient objectives, it had happened in the workplace and he had abused his authority over her and taken advantage of her vulnerability.

He found both Jack and the municipality liable for damages.

Rhodes University law dean Professor Rosaan Krüger yesterday hailed the judgment as groundbreaking.

VIA - sowetanlive.co.za