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In the modern workplace, harassment can no longer be sidelined as a mere HR issue. It’s a broad governance concern, a legal risk, and a reputational threat – and one that has single handedly brought down many a business empire.

Directors and business owners have a fiduciary duty to act decisively and to implement proactive measures that safeguard employee wellbeing and mitigate the risk of harassment. Failure to do so can result in personal liability, costly litigation, and long-term damage to the company’s brand.

 

The Risks are Real

Since the introduction of the Code of Good Practice on the Prevention and Elimination of Harassment in March 2022, South African employers are under heightened scrutiny to foster safe, respectful working environments.

The stakes are high. Non-compliance exposes directors and business owners to significant risk. Harassment claims can escalate into Commission for Conciliation, Mediation and Arbitration (CCMA) disputes (including constructive dismissal claims), Labour Court actions, civil lawsuits, and reputational fallouts that can severely impact employee retention, investor confidence, and broader stakeholder trust.

And beyond the legal and financial consequences, there’s a deeper obligation: Companies must take reasonable steps to prevent harassment and uphold the dignity of every individual in their employ.

 

A Case in Point

This obligation to protect was clearly illustrated in the case of Liberty Group Limited v Margaret Masango JA105/2015. In this matter, the employee had been sexually harassed on at least four occasions by her manager and reported the incidents to the employer. The employer merely referred the victim to its Sexual Harassment Policy to determine whether the manager’s actions amounted to sexual harassment and for information about what she needed to do to lodge a formal complaint. The employer took no further steps to investigate or intervene. The Labour Appeal Court found that the employer did not take all reasonable and practicable steps to eliminate the alleged conduct and comply with the Employment Equity Act (EEA) after being notified of the sexual harassment by the employee. As a result, the company (not the individual perpetrator) was held liable and ordered to pay R250,000 in damages for breach of the EEA.

The Labour Court upheld the CCMA’s award, confirming that the employer had not taken sufficient steps to prevent or address the harassment. This judgment reinforces several key principles:

• Employers must act promptly and effectively when harassment is reported.
• Failure to do so can result in financial liability and reputational damage.
• The credibility of evidence and the timeliness of reporting are critical in determining liability.

 

Understanding the Legal Framework

South Africa’s legal stance on workplace harassment is rooted in the Employment Equity Act, which prohibits unfair discrimination and harassment in the workplace. The 2022 Code of Good Practice on the Prevention and Elimination of Harassment builds on this foundation, expanding the definition of harassment and setting out clear expectations for employers. The Code provides a comprehensive and easy-to-understand guide. It:

• Defines harassment as unwanted conduct that impairs a person’s dignity or creates a hostile, intimidating, or offensive work environment.
• Recognises harassment in physical, verbal, online, and remote work contexts. This includes incidents that occur in virtual environments or during employer-arranged transport and off-site activities.
• Applies to all employers, regardless of size or sector.
• Covers not only employees, but also contractors, clients, suppliers, and job applicants, which means that employers are responsible for a much broader group of individuals including those they engage with.

Importantly, the Code is used by the CCMA and Labour Courts to determine whether an employer took reasonable steps to prevent and respond to harassment. So while technically a guideline, it is enforceable and binding in practice, and non-compliance can result in significant legal and financial consequences.

 

Workplace Harassment Recognised in SA Law

Workplace harassment can take many forms, and South African law recognises a broad spectrum of behaviours that may constitute harassment. Understanding the following categories is essential for employers aiming to create a safe and inclusive work environment:

 

Sexual harassment

This includes unwanted sexual advances, comments, or behaviour, whether verbal, physical, or visual. It also covers quid pro quo situations, where professional opportunities are linked to sexual favours, potentially leading to nepotism or favouritism. Lastly, any conduct of a sexual nature that creates a hostile or uncomfortable environment falls under this category.

 

Bullying and intimidation

Bullying involves persistent verbal abuse, threats, exclusion, or manipulation. It often stems from power imbalances (not necessarily positional) and can have a serious impact on an employee’s mental health and overall wellbeing.

 

Racial, ethnic, or religious harassment

This form of harassment includes derogatory remarks, offensive jokes, or exclusion based on race, ethnicity, or religion. Even a single incident can be considered harassment if it contributes to a hostile or discriminatory environment.

 

Online and virtual harassment

With the rise of remote work, harassment has extended into digital spaces. This includes cyberbullying, inappropriate messages, or exclusion from virtual team activities. The Code explicitly recognises harassment via email, messaging platforms, and social media.

 

Proactive Steps to Curb Harassment

Creating a harassment-free workplace goes beyond responding to complaints, extending to building a proactive framework that prevents issues before they arise. There are many ways to do so:

Adopt and communicate a zero-tolerance policy

The first step is to clearly document and raise awareness around your company’s stance on harassment. Your policy can be either standalone or integrated into your disciplinary code, and should:

• Be clear, accessible, and strictly enforced.
• Be communicated to all staff across all levels.
• Educate employees on the types of harassment recognised in law.
• Clearly define unacceptable behaviour and outline expected standards.
• Explain the consequences of non-compliance, including the impact on the perpetrator, the victim, and the broader team.
• Include a position on office relationships, which should be regulated to prevent power imbalances, favouritism, and reputational harm.

 

Put a disciplinary code in place

When employees understand what is expected, and what won’t be tolerated, they’re more likely to behave responsibly. Your disciplinary code is a critical tool for enforcement of this, and should:

• Explicitly prohibit all forms of harassment.
• Set out expected behaviours for employees.
• Be consistently applied to ensure fairness and credibility.

 

Implement formal grievance policies

Employees must have access to a safe and structured channel to report harassment. Your grievance policy should:

• Provide multiple reporting avenues (e.g. HR, line managers, anonymous hotlines).
• Guarantee confidentiality and protection against retaliation.
• Include clear timelines and procedures for resolution.

 

Conduct risk assessments and provide safe reporting channels:

Employers should regularly assess the workplace for harassment risks and ensure that employees can report concerns without fear. This includes:

• Anonymous reporting tools.
• Whistle-blower protections.
• Culture audits to identify and address emerging risks.

 

Conduct workshops, run campaigns, and train all levels of staff

Awareness campaigns and toolbox talks can reinforce key messages and foster a culture of respect. Training should be more than a tick-box exercise, and must be:

• Ongoing and tailored to your workforce.
• Inclusive of managers, contractors, and third-party service providers.
• Focused on recognising, preventing, and responding to harassment

 

Monitor, review, and keep records

Employers must track incidents, review policies annually, and analyse behavioural trends. This helps to identify potential problem areas early and to continuously improve your response strategy.

 

Dealing with a Complaint

When a complaint is made, your response must be prompt, impartial, and supportive. Follow these steps to handle it effectively:

 

Receive and record the complaint

Start by making sure that the complaint is documented accurately. Offer different ways for employees to report issues, whether that’s in person, via email, or anonymously. Reassure them that their privacy will be respected. Many cases go unreported simply because people fear retaliation, so creating a safe space is key.

 

Protect the complainant right away

Take immediate steps to ensure that the complainant feels safe. This might mean temporarily relocating them, offering counselling, or suspending the alleged perpetrator if appropriate. Just be mindful: Suspensions should be fair and proportionate to the nature of the allegation. You also need to consider the rights of the accused, especially in cases where the complaint may later prove to be unfounded. Acting too harshly too soon could lead to claims of unfair labour practice.

 

Investigate promptly and impartially

A thorough and unbiased investigation is essential. Depending on the sensitivity and/or profile of the case, it might be best to bring in an external investigator to ensure neutrality and credibility.

 

Take appropriate action

If the investigation confirms misconduct, apply disciplinary measures based on your company’s sanctions matrix and disciplinary code. Consistency is crucial: Treat similar cases similarly to avoid any perception of bias or unfairness.

 

Follow up and keep monitoring

Don’t stop once the case is closed. Check in with the complainant to see how they’re doing. Take a look at the broader workplace culture: Are there patterns or risks that need addressing? Update policies and training where needed. Prevention isn’t a one-time fix; it’s an ongoing commitment.

 

Creating a Culture That Prevents Harassment

At the end of the day, your workplace culture is your strongest defence against harassment. When leadership leads by example, when employees feel safe to speak up, and when mental health support is woven into everyday operations, you are building trust.

At Labournet, we help you to make that culture a reality. From policy drafting and risk assessments to training and investigation support, our team partners with you to go beyond legal compliance to creating a workplace where safety, respect, and dignity are non-negotiable. Let’s build a harassment-free environment together.