SEXUAL HARASSMENT IN THE WORKPLACE - WHAT THE COURTS SAY
- EOHCB National
- 3 hours ago
- 8 min read
Written by Jaco Parkin
Sexual harassment in the workplace is not just an HR issue. It is a legal liability, a reputational risk, and a matter that South African courts take increasingly seriously. For employers, the lesson from two decades of case law is clear: how you handle a complaint matters just as much as whether the misconduct happened at all. Getting it wrong can cost you hundreds of thousands of rands, even when your employee is the guilty party.
This article walks through key South African court decisions, what went wrong in each case, and what every employer needs to know to protect their business and their people.
The Constitutional Court Sets the Tone
Dr McGregor was employed as head of anesthesiology at George Hospital. He was found guilty on four counts of sexual harassment involving a newly qualified intern who was thirty years his junior. The conduct included daring the intern to swim naked, pressing himself against her during a medical procedure, making sexual advances, and inappropriately touching her leg during a car trip together.
After his dismissal, Dr McGregor challenged the decision all the way to the Constitutional Court, arguing that the allegations were fabricated and that procedural flaws in his disciplinary hearing justified reinstatement. The Constitutional Court dismissed his appeal. While it acknowledged a procedural irregularity during the hearing, it reduced his compensation from six months' salary (nearly R925,000) down to two months' salary, calling it unjust to pay a man close to R1 million for a procedural technicality when he had been found guilty of sexual harassment.
What employers must take from this:
Power imbalances matter enormously. The court described the imbalance between a senior specialist and a young female intern as "glaring". In your workplace, any situation where a senior person harasses a junior employee will be viewed in this light.
Procedural fairness is still required even for serious misconduct. The employer in this case was penalised for excluding evidence during the disciplinary hearing. Always ensure the accused has a full and fair opportunity to respond to every piece of evidence against them.
The Constitutional Court sent a deliberate message. Sexual harassment "strips away at the core of a person's dignity and is the antithesis of substantive equality in the workplace." Courts will not look favourably on perpetrators who continue to deny and appeal.
Not Using the Code Costs You
A divisional director made a series of inappropriate comments to a female colleague, including telling her he "can't wait for summer to see you strut your stuff" and asking if she was "offering to play with me". The conduct also included unwelcome physical contact in the form of hugging and kissing. The employee was charged and dismissed.
The CCMA commissioner found that the comments did not constitute sexual harassment because they lacked explicit sexual connotations, and that the complainant had not clearly told the employee his behaviour was unwelcome. The arbitration award in favour of the employee was taken on review by the employer, and the Labour Court set it aside. The court found the commissioner had failed entirely to apply the Code of Good Practice on Handling Sexual Harassment Cases, which is the legal framework that must guide all such decisions.
What employers must take from this:
Sexual harassment does not require explicit sexual language. Suggestive comments, unwelcome banter of a sexual nature, and uninvited physical contact all qualify. Do not wait for conduct to become overtly sexual before acting.
The Code of Good Practice is not optional. Any disciplinary process or arbitration that ignores it is vulnerable to review. Make sure your HR manager and any presiding officer is fully familiar with it.
A victim does not need to say "no" explicitly. Non-verbal signals of discomfort count. The court held that conduct becomes harassment if the perpetrator knew or should have known it was unwelcome.
One Incident Can Be Enough
Case: Campbell Scientific Africa (Pty) Ltd v Simmers (LAC, 23 October 2015) - Analysis by Lawtons Africa
During a business trip to Botswana, an installation manager told a female colleague from another company, "Do you want a lover tonight?" and later said, "Come to my room if you change your mind." He was dismissed after his employer discovered what had happened. The CCMA upheld the dismissal as fair. The Labour Court on review found the dismissal was too harsh, concluding it was a once-off incident and that the employee had backed off when rebuffed. On further appeal, the Labour Appeal Court reversed the Labour Court and restored the dismissal.
The LAC held that sexual harassment does not require persistent conduct. A single incident can be sufficient, particularly when the nature of the conduct is serious enough. It also confirmed that harassment is a form of unfair discrimination under the Employment Equity Act, which carries constitutional weight.
What employers must take from this:
Do not discount single incidents. The law is clear that one serious act of sexual harassment can justify dismissal. You do not need a pattern of behaviour before taking action.
Backing off when rejected is not a defence. The fact that the perpetrator accepted the rejection does not make the initial conduct acceptable. The unwelcome nature of the advance is what matters.
Context counts. The parties were in a professional setting on a business trip. The fact that they worked for different companies did not remove the professional obligation to behave appropriately.
Credibility Assessments Must Be Done Properly
A Nedbank manager was dismissed for sexually harassing a female colleague between September 2020 and April 2021. The conduct included persistently telling her she was "beautiful" and "stunning", asking her to sit on his lap, and on two occasions deliberately slamming a metal recycling bin with force, knowing it would frighten her. He was dismissed following a disciplinary hearing. The CCMA arbitrator found the dismissal unfair, concluded the complainant was untruthful, and ordered Nedbank to pay over R400,000 in backpay.
Nedbank took the matter on review to the Labour Court. Acting Judge Navsa set aside the arbitration award in a strongly worded judgment. The court found the arbitrator had committed "gross irregularities": he had failed to apply the Code of Good Practice, focused on the wrong legal test, made unsupported credibility findings against the victim, and ignored how the victim experienced the conduct. The court noted the complainant's evidence had been consistent, clear, and credible. The dismissal was confirmed as substantively fair.
What employers must take from this:
Harassment must be assessed from the victim's point of view. The Labour Appeal Court has consistently held that conduct must be evaluated based on how the victim perceived it, and whether that perception was reasonable. A perpetrator cannot reframe their behaviour as innocent compliments and expect courts to accept that.
Fight a bad arbitration award. Nedbank spent the resources to take this on review and won. Where an arbitrator's decision is clearly disconnected from the evidence or the Code, it can and should be challenged. Keep records that allow you to do this.
Harassment can take multiple forms in one complaint. The same perpetrator was charged with both sexual harassment and general harassment (the bin-slamming). Treat all charges carefully and separately. Conflating them, as the arbitrator did here, leads to errors.
Pattern behaviour strengthens a complaint. The court noted that the intimidation (the bin-slamming) took on added significance in the context of the prior sexual harassment. Ongoing conduct that creates a hostile environment is viewed more seriously than a standalone incident.
Employer Liability When You Fail to Act
A municipal employee alleged that her manager, with whom she shared an office, subjected her to repeated acts of sexual harassment including requesting that she perform oral sex on him. She said she did not resist out of fear of losing her job. She eventually reported the matter after her partner encouraged her to do so. The employer was found to have failed to protect her and was ordered to pay R150,000 in compensation.
The case was ultimately resolved on an evidentiary matter at the LAC (the court found the complainant's evidence was contradicted by audio recordings and her own messages). However, the principle the LAC confirmed is significant: an employer becomes liable where the harassment is reported and the employer fails to take steps to protect the employee. Failure to respond is not a neutral act. It is a breach of your legal duty.
What employers must take from this:
When a complaint is made, act immediately. The moment you know about harassment, you have a legal obligation to investigate and protect the complainant. Inaction exposes you to direct liability.
Power dynamics affect reporting. A manager who controls a subordinate's employment, scheduling, or income creates exactly the kind of coercive environment where victims cannot easily speak up. Courts understand this, and you should too.
Credibility must be assessed honestly. Both sides of this case illustrate that the credibility of witnesses is central to outcomes. Train your investigators to assess evidence carefully, document everything, and apply the Code consistently.
Shared office environments create unique risk. Where employees work in close proximity, particularly where one has authority over the other, the risk of harassment and of complaints is elevated. This is especially relevant to small businesses, salons, and open-plan environments.
The Common Thread: What Gets Employers Into Trouble
Reading across these cases, a clear pattern emerges. Employers and arbitrators who get into difficulty tend to make the same mistakes:
Failing to apply the Code of Good Practice
This is the single most common reason arbitration awards are set aside on review. The Code must be applied at every stage, from investigation to hearing to sanction.
Using the wrong legal test
Harassment is not about whether the perpetrator intended to offend or whether the conduct was explicitly sexual. It is about whether the conduct was unwelcome and how it affected the victim.
Dismissing complaints because victims did not act in a particular way
Courts have firmly rejected the idea that a victim who did not immediately object, report, or withdraw from a situation is not a credible witness.
Allowing procedural errors in disciplinary hearings
Convicting someone of sexual harassment while denying them the opportunity to respond to evidence is a legal problem that will follow you to court.
Not having a policy
If you do not have a sexual harassment policy in place, you have no framework, no reporting procedure, and no baseline to discipline against. Courts will notice this.
A Practical Guide for Employers
Based on what the courts have consistently required, every employer should have the following in place:
A written sexual harassment policy that defines the conduct, provides reporting channels, and explains consequences.
A policy that is communicated to all staff, signed as acknowledged, and available in a language employees understand.
A fair, documented investigation process every time a complaint is received.
Presiding officers who are trained and familiar with the Code of Good Practice on Harassment in the Workplace (2022).
A record of all complaints, investigations, and outcomes.
Protection from victimisation for any employee who makes a complaint in good faith.
Legal advice before decisions are made in complex or high-stakes cases.
Sexual harassment is not an area where employers can afford to improvise. The courts have made it clear that they expect employers to have systems, apply the law correctly, and act decisively when things go wrong. Those who do will be supported. Those who do not, will pay.
If a member has questions about your harassment policy or need guidance on a specific complaint, contact your EOHCB representative before taking action.
