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Logically, the amended code should have replaced the previous code, however, the first code was never repealed.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it being termed the “Amended” Code, this Code does not replace or supersede the 1998 Code, which to date has not been withdrawn.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.
