Provided By Cliffe Dekker Hofmeyr By Jose Jorge And Steven Adams
Until 19 December 2018, employers had to apply two Code of Good Practice for the Handling of Sexual Harassment Cases in the workplace. The first code was issued in 1998 (Government Notice R1367 of 17 July 1998). This code was amended on 4 August 2005, by the Amendments to the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (General Notice 1357).
The amended code introduced a new definition for what constitutes sexual harassment – it provided guidance on what factors to consider in determining whether an act of sexual harassment has occurred, and it placed a greater onus on employers to take positive steps to implement a sexual harassment policy.
Logically, the amended code should have replaced the previous code, however, the first code was never repealed. This meant that both codes applied, and employers had to consider the provisions of both codes when dealing with cases of sexual harassment.
As the Labour Appeal Court held in Campbell Scientific Africa (Pty) Ltd v Simmers and Others (CA 14/2014) [2015] ZALCCT 62:
“In spite of it being termed the “Amended” Code, this Code does not replace or supersede the 1998 Code, which to date has not been withdrawn. The result is that in terms of s203(3), both Codes are “relevant codes of good practice” to guide commissioners in the interpretation and application of the LRA.”
On 19 December 2018, the Minister of Labour issued a notice formally repealing and replacing the 1998 code with the amended code of 2005. This brings certainty to employers and CCMA commissioners about which code to apply. The clarity provided by the notice of repeal is welcomed.
