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Code of Good Practice for the Handling of S*xual Harassment Cases

By Jose Jorge, Director and Steven Adams, Senior Associate, Employment, Cliffe Dekker Hofmeyr

 

Until 19 December 2018, employers had to apply two Code of Good Practice for the Handling of S*xual 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 S*xual Harassment Cases in the Workplace (General Notice 1357).

 

The amended code introduced a new definition for what constitutes s*xual harassment - it provided guidance on what factors to consider in determining whether an act of s*xual harassment has occurred, and it placed a greater onus on employers to take positive steps to implement a s*xual 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Logically, the amended code should have replaced the previous code, however, the first code was never repealed.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 s*xual 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it being termed the “Amended” Code, this Code does not replace or supersede the 1998 Code, which to date has not been withdrawn.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.

 

For more information contact Jose Jorge at or Steven Adams at 

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

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Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

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