The controversial issue was succinctly summarised by the Labour Court in Rustenburg Platinum Mines Limited v UASA obo Pietersen and Others (2018) 39 ILJ 1330 (LC) where the Court held as follows:- 

“[40] A workplace is exactly that and should not ordinarily be confused with a ‘find me love’ sanctuary or lonely hearts’ club for love-sick employees. I agree with the Commissioner’s observations that there is nothing wrong with employees being attracted to each other at the workplace. After-all, we are all part of Homo sapiens with feelings and emotions, and it is possible for the office affair to turn into a ‘happily thereafter union’. 

[41] There is a school of thought that holds the view that human beings can be slaves to their urges. That being so, it does not imply that employees are incapable of controlling those urges in the workplace. A workplace should be free from ‘amorous’ and testosterone filled employees looking for love and gratification at every available opportunity. There is everything wrong when employees express their affection in the workplace to each other, to the point where the conduct in question is frowned upon, as it crosses that fine line between innocent attraction and sexual harassment”. 

Apart from possible claims of sexual harassment, exposing the employer to increased risk and liability in accordance with the provisions of the Employment Equity Act, workplace disharmony must be considered.   In most instances workplace romances do not turn into a ‘happily thereafter union’ and instead, the once salacious working relationship becomes tainted with embarrassment or resentment directly affecting the working environment. 

In the case of G v K (1998) 9 ILJ 314 (IC) a junior director was dismissed as her affaire de coeur with a senior director allegedly caused embarrassment to him and affected his relationship with his wife.  In evaluating the dismissal of the junior director, the Industrial Court held that there is no legal basis for dismissing an employee for having an affair with another employee once the affair is over and that the senior director "having made his bed, he must now lie there", so to speak. 

In the case of Zaindeen and Clicks Retailers (Pty) Ltd 35 ILJ 2322 (CCMA) an employee was dismissed for unauthorized removal of stockroom keys and sexual harassment of B, another employee. The employee had taken the stockroom keys to go there and kiss B after work. Fortunately for the employee, the Commissioner found that his conduct towards B was consensual and that his dismissal for the removal of the keys was too harsh in the circumstances.

The question of course then arises, how do employers navigate this conundrum at the workplace, particularly as it normally involves the private affairs of two consenting adults.   

In the USA employers have resorted to the so-called “Love Contract”.   The purpose of a Love Contract is to notify the employer of a consensual romantic relationship and indemnify it against claims of sexual harassment.  The Love Contract also contains certain rules for appropriate and professional workplace conduct.  Although Love Contracts are often perceived as invasive or an infringement of an employee’s right to privacy, it does serve a legitimate organizational purpose and may mitigate against the adverse effects of workplace relationships.  A proactive approach should be adopted. 

The answer, although not uncomplicated, can thus be found in the employee’s terms and conditions of employment.  Employers, who wish to steer clear of the “hands-off’ approach, can contractually regulate romantic relationships at the workplace and promote a culture of transparency by issuing an appropriate policy.   Such a policy would also enable employers to implement the necessary steps and safeguards in order to ensure overall productivity and a safe and harmonious working environment. As the implementation of such a policy may alter existing terms and conditions of employment it is recommended that legal advice be sought.