Sexual harassment allegations place employers in a difficult position. On one hand, there is a legal and moral duty to protect employees. On the other, South African labour law is clear, as an employee cannot be dismissed unless misconduct is proven on a balance of probabilities. This creates a real dilemma when an allegation is investigated but the evidence, or lack thereof, does not justify dismissal. Employers often wonder if their hands are tied. In principle, employers’ hands are not tied in these cases, but careful, lawful action is essential.

The Legal Reality Employers Face

South African law requires employers to balance substantive and procedural fairness with a positive duty to prevent sexual harassment. These duties operate side by side:

  • An employer must act when harassment is reported.
  • An employer must act fairly, ensuring any disciplinary steps are supported by evidence.

Key cases illustrate this balance:

  • Masango v Liberty Group Ltd (JS576/2010) [2011] ZALCJHB 76 – The Labour Appeal Court confirmed employers can be held liable for failing to take reasonable steps once harassment is reported. Liability extends beyond the alleged harasser to the employer’s response.
  • Masemola v Commission for Conciliation, Mediation and Arbitration and Others (JR1025/2013) [2016] ZALCJHB 183 (17 May 2016) – Sexual harassment findings depend heavily on evidence, context, and impact. Without sufficient proof, dismissal is not legally justified.
  • Shabangu v Commission for Conciliation, Mediation and Arbitration and Others (JR2023/19) [2025] ZALCJHB 125 (27 February 2025) – Employers cannot dismiss employees in these cases only to “err on the side of caution”. Evidence must support the decision. Attempting dismissal without proof often fails at the CCMA or Labour Court.

What Employers Can Do When Dismissal Isn’t an Option?

A not guilty or inconclusive finding does not mean business as usual. Employers still have a duty to manage risk and protect employees, but these measures must be reasonable, not punitive, and operational or protective, and not disguised disciplinary action.

Practical steps include:

  • Adjusting reporting lines
  • Changing work arrangements or schedules
  • Separating the parties where possible

Communication is critical. Both the complainant and the accused should understand the outcome, the reasons behind it, and the measures in place. Silence can breed mistrust, resentment, or additional complaints.

Supporting the Complainant Without Prejudging the Accused

Even when evidence is insufficient, the complainant’s experience cannot be ignored. Employers should:

  • Provide access to counselling or support services
  • Monitor the work environment to prevent retaliation
  • Ensure consistent application of protective measures

These actions are not optional, but part of the employer’s duty of care. Heavy-handed measures, however, can create new legal risks, including claims of unfair treatment or constructive dismissal.

Documentation Remains Crucial

Employers tend to wind down proceedings and their guard once dismissal is not possible. This is a mistake. Employers should still capture detailed records with:

  • Investigation steps and findings
  • Reasoning behind decisions
  • Measures implemented afterward

Proper documentation protects the employer if, among other things, a second incident occurs or if the matter is later referred externally. It demonstrates that the employer acted reasonably, consistently, and in good faith.

Conclusion

Sexual harassment cases are rarely straightforward. Inconclusive outcomes are common, but inaction is never defensible. South African law does not demand perfection, but it does require responsible, consistent, and fair action. Dismissal may not always be possible. Acting proactively, protecting employees, and documenting decisions is essential to fulfilling legal and moral obligations.