Informal Resolution Of Harassment Complaints Does Not Absolve Employers Of Their Obligations

The Labour Court's judgment in Louw v Department of Correctional Services, delivered on 25 May 2026 provides important guidance on the limits of informal procedures in addressing harassment complaints. Even where a complainant initially elects an informal resolution,such as seeking an apology, the employer retains an independent obligation to ensure that harassment is adequately addressed and eliminated. An employer may be found wanting in discharging his statutory obligations to prevent and eliminate workplace harassment if it follows an informal process that merely results in an apology, without properly assessing whether harassment has been effectively dealt with.

The facts

The applicant, Mr Louw, was employed as a Correctional Officer at the De Aar Correctional Centre from July 2008. He was dismissed on 25 March 2022 following a complaint of sexual harassment by a fellow female Correctional Officer (the "complainant").

After the complainant's late-night shift on 15 February 2021, the applicant was instructed to drive her home. This task fell within his functions and he was clearly being entrusted with the complainant’s safety and security. Instead, he deviated from the route, drove to a secluded area behind a school, and stopped the vehicle. He told the complainant bluntly that he intended to have sexual intercourse with her. When she refused, he attempted to touch her private parts, tried to forcefully kiss her and told her to get out of the vehicle so that he could "hold and squeeze" her. The complainant resisted throughout, and the applicant eventually drove her home although he continued to send her WhatsApp messages throughout the night.

The following morning, the complainant reported the incident to management. The applicant was called to the meeting and, after initially denying the allegations, admitted misconduct and apologised. At that stage, the complainant indicated she only sought an apology, as she felt sorry for the applicant and his family.

However, the next day, the complainant learned that the applicant was displeased she had asked another colleague, Mr Venter, to drive her home instead of him. The applicant insisted it was still his responsibility to take her home. The complainant formed the view that the applicant had not shown genuine remorse, changed her mind, and indicated she wished to pursue the matter formally. She subsequently required psychological treatment and was admitted to hospital for two weeks, followed by a further week of sick leave.

The applicant was suspended, an investigation was conducted, and a disciplinary enquiry was held, resulting in his dismissal.

The applicant's challenge

The applicant referred an unfair dismissal dispute to the bargaining council, where an arbitrator confirmed the dismissal. He then sought to review the award in the Labour Court on two principal grounds: first, that the arbitrator failed to apply progressive discipline properly given his 14 years of unblemished service; and second, that the informal meeting at which he apologised constituted a disciplinary process that brought the matter to finality, such that the subsequent enquiry amounted to double jeopardy.

The Labour Court's findings

Tlhotlhalemaje J cited the Constitutional Court's remarks in McGregor that sexual harassment is "the most heinous misconduct that plagues a workplace", undermining the dignity, integrity and self-worth of the victim. The Court observed that the applicant abused his position of trust, as the complainant had been placed in his care for safe transport home late at night.

Critically, the Court held that sexual harassment of this nature could not be disposed of through a mere apology. It was irrelevant whether the complainant accepted the apology; the employer was obliged to act in accordance with the applicable prescripts, including the Code and its own disciplinary code,to protect employees from sexual harassment.

The Court endorsed the principle from MEC for Education (North West Provincial Government) v Makubalo that workplace rules regulate the standard of conduct required in the employment relationship and an employer is entitled to take disciplinary action against an employee whose conduct falls short of those standards. An amicable resolution between two employees does not resolve the workplace misconduct from the employer's perspective, nor does it prevent the employer from taking disciplinary action. It was not for the complainant to forgive and forget; the misconduct negatively impacted the workplace environment and called for severe disciplinary measures.

The informal meeting could not constitute a disciplinary step capable of sustaining a defence of double jeopardy: it had been called at the behest of the complainant, no formal charges were preferred, and no formal hearing as envisaged in the Department's disciplinary code was held.

The Court observed that the complainant was failed not only by the applicant but also by the Department: it took a year from suspension to dismissal, during which the applicant continued working alongside female employees. However, the Department's ineptitude did not entitle the applicant to a "free pass".

The misconduct was egregious in the extreme; the applicant's long service record could not on its own exonerate him; and counselling rather than dismissal would have been an injustice to the complainant. The review application was dismissed.

The interplay between informal and formal procedures under the Code

The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace published under the Employment Equity Act (“the Code”) makes express provision for both informal and formal procedures. A complainant may choose an informal procedure, typically involving an explanation to the perpetrator that the conduct is unwelcome and its impact on the complainant, or may proceed directly to a formal procedure.

Crucially, where a complainant chooses not to follow a formal procedure, the employer must still assess the risk to other persons in the workplace. The employer must consider all relevant factors, including the severity of the harassment and whether the perpetrator has a history of harassment. If, after a proper investigation, there is a significant risk of harm to other persons, the employer must follow a formal procedure irrespective of the complainant's wishes.

The Code further provides that, upon receiving a complaint, the employer must consult all relevant parties and take the necessary steps to eliminate the harassment. A failure to take adequate steps renders the employer vicariously liable under section 60 of the Employment Equity Act.

Key takeaways for employers

A complainant's election to follow an informal procedure does not relieve the employer of its obligation to ensure that harassment is adequately addressed and eliminated. Where the misconduct is of such a nature that an informal resolution is manifestly inadequate, the employer must pursue formal disciplinary action regardless of the complainant's preference.

Moreover, where a complainant initially elects an informal route but subsequently changes their mind, the employer is not precluded from instituting formal proceedings and may be obliged to do so. The circumstances warranting formal action include where the complainant's subsequent experience reveals the informal resolution was ineffective, where the perpetrator's conduct suggests a lack of genuine remorse or a risk of repetition, or where the severity of the misconduct objectively warrants formal sanction.

Employers must ensure that, at the conclusion of any informal process, the complainant is genuinely satisfied that the matter has been fully and properly addressed. As the facts of Louw illustrate, an apology where the perpetrator subsequently demonstrates a lack of genuine remorse is not an adequate resolution. Employers should follow up with the complainant to confirm that the matter is considered resolved and that the harassment has ceased.

An amicable resolution between the complainant and perpetrator does not resolve the workplace misconduct from the employer's perspective. As held in Makubalo, an employer is entitled, and may be obliged, to take disciplinary action even where the parties have reached an informal resolution.

Finally, employers must act expeditiously. The Court's criticism of the Department for taking a year to finalise the process is a pointed reminder that delay compounds harm to the complainant and exposes the employer to censure.

Conclusion

Louw is a salutary reminder that informal resolution of a harassment complaint is not a panacea. Employers bear an independent obligation, rooted in the Employment Equity Act, the Code, and workplace policies, to ensure that harassment is eliminated. An employer who simply accepts an apology at face value without satisfying itself that the harassment has been adequately addressed does so at its peril. Employers should review their policies to ensure proper follow-up with complainants after informal processes, independent risk assessments of the perpetrator's continued presence, and clear escalation criteria for formal proceedings, even where the complainant has not requested them.

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