Workplace Harassment in South Africa: Complaint Routes

Key takeaways

• Workplace harassment can occur in an office, online, on work travel, at a work event, in employer-controlled transport or accommodation, or through a client, supplier or other work contact.
• A single serious incident can qualify. A complainant need not wait for repeated conduct before reporting it.
• General bullying or conflict is not automatically unfair discrimination. The prohibited ground, employment consequence and legal route still need classification.
• The employer should investigate reported harassment, consult relevant parties and take necessary steps to address and eliminate it.

1. First classify the conduct and its connection to work

The 2022 Code of Good Practice addresses physical, verbal, psychological and sexual harassment in the working world. The setting is wider than the employer's premises. Work-related messages, remote work, travel, training, social activities, employer-provided transport and accommodation can fall within the workplace context. The Code also recognises that an employee may be harassed by a client, customer, supplier or another third party.

Harassment usually involves unwanted conduct that impairs dignity, creates a hostile or intimidating environment, causes harm or threatens an adverse consequence. The form, persistence, seriousness, power relationship, impact and surrounding circumstances all matter. A single incident may be sufficient.

For an Employment Equity Act claim, identify the connection to one or more prohibited grounds. These include race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or another arbitrary ground. Sexual and racial harassment are clear examples of harassment linked to listed grounds.

Conduct may still be unacceptable if that connection cannot be proved. Repeated belittling, unreasonable pressure, exclusion or hostile management may engage a grievance, contract, health-and-safety, disciplinary or other route. The CCMA does not have a general power to decide every form of workplace unfairness. The workplace-harassment glossary and unfair-discrimination-at-work glossary explain the two concepts without treating them as identical.

2. Deal with immediate safety before perfecting the complaint

If there is an immediate threat of violence, sexual assault, stalking or another danger, move to a safe place and contact the appropriate emergency or police service. An internal grievance does not replace urgent protection.

Ask the employer for proportionate interim safeguards while facts are investigated. Depending on the circumstances, these might concern reporting lines, shifts, contact channels, remote access, work travel, meetings, physical access or a support person. Do not assume the complainant must be moved or disadvantaged. A measure should protect safety and dignity without predetermining guilt or becoming retaliation.

Keep medical, counselling and leave records if the conduct has affected health. Share sensitive information only through appropriate channels and only to the extent required. The Code requires confidentiality to be protected, but it also recognises that an employer may need to act to protect safety and dignity.

3. Make an internal report that can be investigated

Find the harassment, grievance, disciplinary, whistleblowing and escalation policies. Use the identified channel unless it is unsafe, unavailable or controlled by the person complained about. An alternative may be HR, a more senior manager, an ethics channel, a designated adviser or a trade-union representative.

A useful written report states:

1. what happened, using dates, locations and exact conduct where possible;
2. who was involved and who directly observed each event;
3. how the event was connected to work;
4. why the conduct was unwanted and, if applicable, the prohibited ground involved;
5. the effect on work, safety, dignity or health;
6. the original records available and where employer-held evidence may exist;
7. any immediate protection, preservation or accommodation requested; and
8. the person to whom the report was sent and proof of receipt.

Use neutral language and separate direct observation from inference. Preserve the submitted version. If the report was verbal, send a dated follow-up recording what was reported, to whom and any response.

Under section 60 of the Employment Equity Act and the Code, alleged discriminatory conduct by an employee should be brought to the employer's attention within an appropriate time. The employer must consult relevant parties and take necessary steps to address and eliminate the conduct. The Code says the employer should investigate and explain the available informal or formal procedure. This does not make the employer liable merely because a complaint was made; the conduct, notice, response and statutory defence remain evidence-specific.

4. Match the complaint to the correct external route

The table is a triage tool, not a jurisdiction decision. A bargaining council may have jurisdiction instead of the CCMA. The legal identity of the employer, employment status, collective agreement, ground, outcome and dates must be checked.

For unfair-discrimination disputes, conciliation comes first. If unresolved, sexual-harassment disputes may be referred to CCMA arbitration. Other discrimination disputes may go to arbitration where the statutory earnings or consent conditions apply; otherwise the Labour Court route may apply. The CCMA checklist helps organise service, referral and deadline records after the route is confirmed.

The sexual-harassment-at-work glossary provides a short definition. It should not be used to decide whether particular words, touching, messages, attention, a prior relationship, silence or an employment consequence proves the legal test.

5. Keep internal and external clocks separate

The Employment Equity Act generally requires a reasonable attempt to resolve an unfair-discrimination dispute before referral. An internal report can satisfy an important notice and resolution purpose, but there may be reasons why a particular channel is unsafe or impracticable. Record those reasons and obtain advice.

Do not assume that an investigation, appeal, mediation, sick leave, suspension or settlement discussion extends a statutory referral period. Calculate from every plausible trigger until the dispute is classified. If a period may have expired, condonation is an application requiring reasons and is not guaranteed.

Later retaliation must be recorded as a separate event. A warning, changed duties, blocked promotion, suspension, dismissal or threat after a complaint does not automatically prove retaliation, but it may create an additional discrimination, unfair-labour-practice, protected-disclosure or dismissal question.

6. Preserve a route-neutral evidence file

Create a private index containing:

• a chronology of incidents, reports, responses and employment decisions;
• original emails, messages, audio, photographs or files with dates and context;
• the employment contract, job description, relevant policies and collective agreement;
• witness names and a short note of what each person directly perceived;
• prior reports involving the same conduct only where lawfully available and relevant;
• HR acknowledgements, interview requests, interim measures and outcome communications;
• work records showing a later change in duties, pay, evaluation, discipline or access;
• medical or counselling records kept separately and disclosed carefully;
• proof of financial or other claimed impact; and
• a deadline sheet for internal, council, CCMA, court and police steps.

Do not edit originals, access another person's account, secretly take privileged files or circulate intimate or medical material widely. Keep a working copy and preserve the source. A screenshot may omit sender, date or surrounding messages, so export the conversation where lawful and retain the device or account context.

7. What a fair employer response should address

A response should acknowledge the report, identify the procedure, preserve relevant records, assess interim safety, appoint an appropriately independent decision-maker, hear the relevant parties and communicate next steps. The investigation should be confidential, efficient and effective, but confidentiality does not mean that no information can be put to the respondent.

The complainant cannot ordinarily choose the disciplinary sanction or be promised a particular finding. The employer must assess the evidence and use a fair process. It should still confirm that the complaint was addressed, explain available review or escalation steps where applicable and prevent retaliation or recurrence.

Recent Labour Court decisions continue to apply section 60 by examining what was reported, when the employer knew, what it did and whether it took the necessary and reasonably practicable steps. A policy on paper is not the same as an effective response.

8. Do not resign before testing the consequences

Constructive dismissal has a high threshold. The employee must prove that the employer made continued employment intolerable and that the employee ended the contract because of that conduct. A difficult, unpleasant or stressful workplace is not automatically enough, and an available grievance may matter.

Resignation can affect income, evidence, internal remedies, unemployment-benefit questions and the 30-day dismissal clock. Obtain advice before resigning, signing a settlement or accepting a transfer. The constructive-dismissal glossary explains the concept but cannot determine whether resignation is the only reasonable step in a particular matter.

9. When legal help is especially important

Prompt advice is useful when the alleged harasser owns the business or controls the reporting channel; the conduct is sexual, racial, threatening or violent; a senior employee or third party is involved; the employer has not acted; retaliation or dismissal has begun; the reader may resign; evidence is confidential; multiple forums may apply; or a filing period is close.

The labour-lawyer directory helps identify the relevant practitioner type, while the labour-law hub keeps broader dismissal, discipline and employment-rights issues separate. A lawyer should classify the facts, forum, parties, deadlines, interim protection and evidence before a live filing.

FAQs

Related Lexuno paths