By Lavona Appanna / Associate / Mooney Ford Attorneys

      Michelle Naidoo / Partner / Mooney Ford Attorneys

 By now, you may have seen the viral footage: two individuals, caught in an intimate moment at a public concert with allegations swirling that both are married, but not to each other, and, to add to the twist, employed by the same company. This scenario spurs interesting debate on the parameters of workplace boundaries, and the extent of an employer’s disciplinary arm, dependent on the impacts of romantic relationships at the workplace.

Romance is not the offence. Risk is.

South African law does not prohibit consensual relationships between colleagues at work however romantic relationships at work may encroach acceptable boundaries under the following scenarios:

• A conflict of interest arises from the relationship;
• One party exercises authority over the other’s employment terms or career progression;
• There is a failure to disclose an existing power imbalance;
• The relationship results in reputational or brand damage to the employer.

Disciplinary action under these scenarios is not due to the relationship only but the workplace impacts of romantic relationships at work.

The ongoing Judicial Conduct Tribunal enquiry into Eastern Cape Judge President Selby Mbenenge’s alleged harassment of a subordinate underscores and highlights the legal and reputational risks of workplace relationships where power, consent, and culture intersect. His defence of consensual, culturally contextual conduct underscores the need for clear, enforceable policies on disclosure and professional boundaries to protect organisations from reputational and legal fallout.

Employers are guided to take care to ensure that policies are in place to manage negative impacts arising from romantic relationships at workplaces, as follows:

• Proactively implement a standard or rules of conduct about personal/romantic relations at work;
• Decide on the rules relating to the duty to disclose personal/romantic relationships;
• Determine the scenarios that trigger the duty to disclose and consequences for failing to adhere to the standard of conduct; and
• Set clear rules of conduct for company events outside of the workplace.

Employees: Disclosure is protection, not confession

Our advice to employees who are personally/romantically involved in relationships at work is to assess the workplace impacts, the duty to disclose and the underlying duty to act responsibility, particularly at company functions/events.

Under South African labour law, all employees have a duty of good faith to their respective employers. In our view, conflicts of interests, omission to make open disclosures under appropriate circumstances and behaving irresponsibility or inappropriately in public under circumstances that are likely to attract negative publicity or reputational harm, are valid grounds for disciplinary action. The appropriate sanction to be determined based on the specific facts of each case.

If your organization has identified this issue as a workplace risk, we can assist with curbing these risks with appropriate policy interventions and training.

Photo by Paul Fiedler on Unsplash