legal compliance register - ArcelorMittal South Africa

ARCELORMITTAL SOUTH AFRICA LTD: LEGAL COMPLIANCE REGISTER Document Number: HR002 

Section/Regulation 

REVISION No.: 0 Page 1 of 23 

DATE: 09/06/2008 Amendment 00 

AUTHOR: 

HUMAN RESOURCES DEPARTMENT 

Requirement 

EMPLOYMENT EQUITY ACT NO 55 OF 1998 

CONTENTS 

CLICK ON PAGE NUMBER TO GO TO SECTION OR REGULATION AND USE WEB TOOLBAR TO NAVIGATE 

Section 1 1 

Section 7(1) 1 

Section 7(2) 2 

Section 8 2 

Code of good practice on key aspects of HIV/aids and employment 2 2 















Code of good practice on key aspects of HIV/aids and employment Glossary 13 

Section 1 

"medical testing" includes any test, question, inquiry or other means designed to ascertain, or which has the effect of enabling the employer 

to ascertain, whether an employee has any medical condition. 

Section 7(1) 

Medical testing 

Medical testing of an employee is prohibited, unless-- 

(a) legislation permits or requires the testing; or 

(b) it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent 

requirements of a job.





AUTHOR: 


Requirement 

Section 7(2) 

Testing of an employee to determine that employee's HIV status is prohibited unless such testing is determined to be justifiable by the Labour 

Court in terms of section 50(4) of this Act. 

Section 8 

Psychological testing and other similar assessments 

Psychological testing and other similar assessments of an employee are prohibited unless the test or assessment being used-- 

(a) has been scientifically shown to be valid and reliable; 

(b) can be applied fairly to all employees; and 

(c) is not biased against any employee or group. 

Code of good practice 

on key aspects of 

HIV/aids and 

employment CN 

R129: in Government 

Gazette 2/815 of Dec 

2000 

OBJECTIVES 

2.1 The Code's primary objective is to set out guidelines for employers and trade unions to implement so as to ensure individuals with HIV 

infection are not unfairly discriminated against in the workplace. This includes provisions regarding: 

(i) 

(ii) 

(iii) 

(iv) 

(v) 

creating a non-discriminatory work environment; 

dealing with HIV testing, confidentiality and disclosure; 

providing equitable employee benefits; 

dealing with dismissals; and 

managing grievance procedures. 

2.2 The Code's secondary objective is to provide guidelines for employers, employees and trade unions on how to manage HIV/AIDS 

within the workplace. Since the HIV/AIDS epidemic impacts upon the workplace and individuals at a number of different levels, it 

requires a holistic response, which takes all of these factors into account. The Code therefore includes principles, which are dealt with 

in more detail under the statutes listed in item 5.1, on the following: 

(i) 

(ii) 

(iii) 

(iv) 

(v) 

creating a safe working environment for all employers and employees; 

developing procedures to manage occupational incidents and claims for compensation; 

introducing measures to prevent the spread of HIV; 

developing strategies to assess and reduce the impact of the epidemic upon the workplace; and 

supporting those individuals who are infected or affected by HIV/AIDS so that they may continue to work productively for as 

long as possible.





AUTHOR: 


Requirement 

2.3 In addition, the Code promotes the establishment of mechanisms to foster co- operation at the following levels : 

(i) 

(ii) 

between employers, employees and trade unions in the workplace; and 

between the workplace and other stakeholders at a sectoral, local, provincial and national level. 



HIV/aids and 

employment 

POLICY PRINCIPLES 

3.1 The promotion of equality and non-discrimination between individuals with HIV infection and those without and between HIV/AIDS and 

other comparable health/medical conditions. 

3.2 The creation of a supportive environment so that HIV infected employees are able to continue working under normal conditions in their 

current employment for as long as they are medically fit to do so. 

3.3 The protection of human rights and dignity of people living with HIV or AIDS is essential to the prevention and control of HIV/AIDS. 

3.4 HIV/AIDS impacts disproportionately on women and this should be taken into account in the development of workplace policies and 

programmes. 

3.5 Consultation, inclusivity and encouraging full participation of all stakeholders are key principles, which should underpin every 

HIV/AIDS policy and programme. 



HIV/aids and 

employment 

APPLICATION AND SCOPE 

4.1 All employers and employees, and their respective organisations are encouraged to use this Code to develop, implement and refine 

their HIV/AIDS policies and programmes to suit the needs of their workplaces. 

4.2 For the purposes of this code, the term "workplace" should be interpreted more broadly than the definition given in the Labour 

Relations Act, Act 66 of 1995, Section 213, to include the working environment of, amongst others, persons not necessarily in an 

employer-employee relationship, those working in the informal sector and the self-employed. 

4.3 This Code however does not impose any legal obligation in addition to those in the Employment Equity Act and Labour Relations Act, 

or in any other legislation referred to in the Code. Failure to observe it does not, by itself, render an employer liable in any 

proceedings, except where the Code refers to obligations set out in law.





AUTHOR: 


Requirement 

4.4 The Code should be read in conjunction with other codes of good practice that may be issued by the Minister of Labour. 



HIV/aids and 

employment 

LEGAL FRAMEWORK 

5.1 The Code should be read in conjunction with the Constitution of South Africa Act, No. 108 of 1996, and all relevant legislation which 

includes the following: 

(i) Employment Equity Act, No. 55 of 1998; 

(ii) Labour Relations Act, No. 66 of 1995; 

(iii) Occupational Health and Safety Act, No. 85 of 1993; 

(iv) Mine Health and Safety Act, No. 29 of 1996; 

(v) Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993; 

(vi) Basic Conditions of Employment Act, No. 75 of 1997; 

(vii) Medical Schemes Act, No. 131 of 1998; and 

(viii) Promotion of Equality and Prevention of Unfair Discrimination Act, No. 4 of 2000. 

5.2 The contents of this code should be taken into account when developing, implementing or reviewing any workplace policies or 

programmes in terms of the statutes listed above. 

5.3 The following are selected, relevant sections contained in certain of the above mentioned legislation. These should be read in 

conjunction with other legislative provisions. 

5.3.1 The Code is issued in terms of Section 54(1)(a) of the Employment Equity Act, No 55 of 1998 and is based on the principle that 

no person may be unfairly discriminated against on the basis of their HIV status. In order to assist employers and employees to 

apply this principle consistently in the workplace, the Code makes reference to other pieces of legislation. 

5.3.2 Section 6(1) of the Employment Equity Act provides that no person may unfairly discriminate against an employee, or an 

applicant for employment, in any employment policy or practice, on the basis of his or her HIV status. In any legal proceedings 

in which it is alleged that any employer has discriminated unfairly, the employer must prove that any discrimination or 

differentiation was fair. 

5.3.3 No employee, or applicant for employment, may be required by their employer to undergo an HIV test in order to ascertain their 

HIV status. HIV testing by or on behalf of an employer may only take place where the Labour Court has declared such testing 

to be justifiable in accordance with Section 7(2) of the Employment Equity Act.





AUTHOR: 


Requirement 

5.3.4 In accordance with Section 187(1)(f) of the Labour Relations Act, No. 66 of 1995, an employee with HIV/AIDS may not be 

dismissed simply because he or she is HIV positive or has AIDS. However where there are valid reasons related to their 

capacity to continue working and fair procedures have been followed, their services may be terminated in accordance with 

Section 188(1)(a)(i). 

5.3.5 In terms of Section 8(1) of the Occupational Health and Safety Act, No. 85 of 1993; an employer is obliged to provide, as far as 

is reasonably practicable, a safe workplace. This may include ensuring that the risk of occupational exposure to HIV is 

minimised. 

5.3.6 Section 2(1) and Section 5(1) of the Mine Health and Safety Act, No. 29 of 1996 provides that an employer is required to 

create, as far as is reasonably practicable, a safe workplace. This may include ensuring that the risk of occupational exposure 

to HIV is minimised. 

5.3.7 An employee who is infected with HIV as a result of an occupational exposure to infected blood or bodily fluids, may apply for 

benefits in terms of Section 22(1) of the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993. 

5.3.8 In accordance with the Basic Conditions of Employment Act, No. 75 of 1997 every employer is obliged to ensure that all 

employees receive certain basic standards of employment, including a minimum number of days sick leave [Section 22(2)]. 

5.3.9 In accordance with section 24(2)(e) of the Medical Schemes Act, No 131 of 1998, a registered medical aid scheme may not 

unfairly discriminate directly or indirectly against its members on the basis of their “state of health”. Further in terms of s 67 

(1)(9) regulations may be drafted stipulating that all schemes must offer a minimum level of benefits to their members. 

5.3.10 In accordance with both the common law and Section 14 of the Constitution of South Africa Act, No. 108 of 1996, all persons 

with HIV or AIDS have a right to privacy, including privacy concerning their HIV or AIDS status. Accordingly there is no general 

legal duty on an employee to disclose his or her HIV status to their employer or to other employees. 



HIV/aids and 

employment 

PROMOTING A NON-DISCRIMINATORY WORK ENVIRONMENT 

6.1 No person with HIV or AIDS shall be unfairly discriminated against within the employment relationship or within any employment 

policies or practices, including with regard to: 

(i) 

(ii) 

(iii) 

recruitment procedures, advertising and selection criteria; 

appointments, and the appointment process, including job placement; 

job classification or grading;





AUTHOR: 


Requirement 

(iv) 

(v) 

(vi) 

(vii) 

(viii) 

(ix) 

(x) 

(xi) 

(xii) 

(xiii) 

remuneration, employment benefits and terms and conditions of employment; 

employee assistance programmes; 

job assignments; 

the workplace and facilities; 

occupational health and safety; 

training and development; 

performance evaluation systems; 

promotion, transfer and demotion; 

disciplinary measures short of dismissal; and 

termination of services. 

6.2 To promote a non-discriminatory work environment based on the principle of equality, employers and trade unions should adopt 

appropriate measures to ensure that employees with HIV and AIDS are not unfairly discriminated against and are protected from 

victimisation through positive measures such as: 

(i) 

(ii) 

(iii) 

(iv) 

(v) 

preventing unfair discrimination and stigmatisation of people living with HIV or AIDS through the development of HIV/AIDS 

policies and programmes for the workplace; 

awareness, education and training on the rights of all persons with regard to HIV and AIDS; 

mechanisms to promote acceptance and openness around HIV/AIDS in the workplace; 

providing support for all employees infected or affected by HIV and AIDS; and 

grievance procedures and disciplinary measures to deal with HIV- related complaints in the workplace. 



HIV/aids and 

employment 

7.1 HIV Testing 

HIV TESTING, CONFIDENTIALITY AND DISCLOSURE 

7.1.1 No employer may require an employee, or an applicant for employment, to undertake an HIV test in order to ascertain that employee's 

HIV status. As provided for in the Employment Equity Act, employers may approach the Labour Court to obtain authorisation for 

testing. 

7.1.2 Whether s 7(2) of the Employment Equity Act prevents an employer-provided health service supplying a test to an employee who 

requests a test, depends on whether the Labour Courts would accept that an employee can knowingly agree to waive the protection in 

the section. This issue has not yet been decided by the courts. 

7.1.3 In implementing the sections below, it is recommended that parties take note of the position set out in item 7.1.2.





AUTHOR: 


Requirement 

7.1.4 Authorised testing 

Employers must approach the Labour Court for authorisation in, amongst others, the following circumstances: 

(i) 

(ii) 

(iii) 

(iv) 

(v) 

during an application for employment; 

as a condition of employment; 

during procedures related to termination of employment; 

as an eligibility requirement for training or staff development programmes; and 

as an access requirement to obtain employee benefits. 

7.1.5 Permissible testing 

(a) 

An employer may provide testing to an employee who has requested a test in the following circumstances: 

(i) 

(ii) 

(iii) 

As part of a health care service provided in the workplace; 

In the event of an occupational accident carrying a risk of exposure to blood or other body fluids; 

For the purposes of applying for compensation following an occupational accident involving a risk of exposure to blood or other 

body fluids. 

(b) 

Furthermore, such testing may only take place within the following defined conditions: 

(i) 

(ii) 

(iii) 

(iv) 

At the initiative of an employee; 

Within a health care worker and employee-patient relationship; 

With informed consent and pre- and post-test counselling, as defined by the Department of Health's National Policy on Testing 

for HIV; and 

With strict procedures relating to confidentiality of an employee's HIV status as described in clause 7.2 of this Code. 

7.1.6 All testing, including both authorised and permissible testing, should be conducted in accordance with the Department of Health's 

National Policy on Testing for HIV issued in terms of the National Policy for Health Act, No. 116 of 1990. 

7.1.7 Informed consent means that the individual has been provided with information, understands it and based on this has agreed to 

undertake the HIV test. It implies that the individual understands what the test is, why it is necessary, the benefits, risks, alternatives 

and any possible social implications of the outcome.





AUTHOR: 


Requirement 

7.1.8 Anonymous, unlinked surveillance or epidemiological HIV testing in the workplace may occur provided it is undertaken in accordance 

with ethical and legal principles regarding such research. Where such research is done, the information obtained may not be used to 

unfairly discriminate against individuals or groups of persons. Testing will not be considered anonymous if there is a reasonable 

possibility that a person's HIV status can be deduced from the results. 

7.2 Confidentiality and Disclosure 

7.2.1 All persons with HIV or AIDS have the legal right to privacy. An employee is therefore not legally required to disclose his or her HIV 

status to their employer or to other employees. 

7.2.2 Where an employee chooses to voluntarily disclose his or her HIV status to the employer or to other employees, this information may 

not be disclosed to others without the employee's express written consent. Where written consent is not possible, steps must be taken 

to confirm that the employee wishes to disclose his or her status. 

7.2.3 Mechanisms should be created to encourage openness, acceptance and support for those employers and employees who voluntarily 

disclose their HIV status within the workplace, including: 

(i) 

(ii) 

(iii) 

encouraging persons openly living with HIV or AIDS to conduct or participate in education, prevention and awareness 

programmes; 

encouraging the development of support groups for employees living with HIV or AIDS; and 

ensuring that persons who are open about their HIV or AIDS status are not unfairly discriminated against or stigmatised. 



HIV/aids and 

employment 

PROMOTING A SAFE WORKPLACE 

8.1 An employer is obliged to provide and maintain, as far as is reasonably practicable, a workplace that is safe and without risk to the 

health of its employees. 

8.2 The risk of HIV transmission in the workplace is minimal. However occupational accidents involving bodily fluids may occur, 

particularly in the health care professions. Every workplace should ensure that it complies with the provisions of the Occupational 

Health and Safety Act, including the Regulations on Hazardous Biological Agents, and the Mine Health and Safety Act, and that its 

policy deals with, amongst others: 

(i) 

(ii) 

the risk, if any, of occupational transmission within the particular workplace; 

appropriate training, awareness, education on the use of universal infection control measures so as to identify, deal with and 

reduce the risk of HIV transmission in the workplace;





AUTHOR: 


Requirement 

(iii) 

(iv) 

(v) 

(vi) 

(vii) 

providing appropriate equipment and materials to protect employees from the risk of exposure to HIV; 

the steps that must be taken following an occupational accident including the appropriate management of occupational 

exposure to HIV and other blood borne pathogens, including access to post-exposure prophylaxis; 

the procedures to be followed in applying for compensation for occupational infection; 

the reporting of all occupational accidents; and 

adequate monitoring of occupational exposure to HIV to ensure that the requirements of possible compensation claims are 

being met. 



HIV/aids and 

employment 

COMPENSATION FOR OCCUPATIONALLY ACQUIRED HIV 

9.1 An employee may be compensated if he or she becomes infected with HIV as a result of an occupational accident, in terms of the 

Compensation for Occupational Injuries and Diseases Act. 

9.2 Employers should take reasonable steps to assist employees with the application for benefits including: 

(i) 

(ii) 

providing information to affected employees on the procedures that will need to be followed in order to qualify for a 

compensation claim; and 

assisting with the collection of information which will assist with proving that the employees were occupationally exposed to HIV 

infected blood. 

9.3 Occupational exposure should be dealt with in terms of the Compensation for Occupational Injuries and Diseases Act. Employers 

should ensure that they comply with the provisions of this Act and any procedure or guideline issued in terms thereof. 



HIV/aids and 

employment 

EMPLOYEE BENEFITS 

10.1 Employees with HIV or AIDS may not be unfairly discriminated against in the allocation of employee benefits. 

10.2 Employees who become ill with AIDS should be treated like any other employee with a comparable life threatening illness with regard 

to access to employee benefits. 

10.3 Information from benefit schemes on the medical status of an employee should be kept confidential and should not be used to unfairly 

discriminate. 

10.4 Where an employer offers a medical scheme as part of the employee benefit package it must ensure that this scheme does not 

unfairly discriminate, directly or indirectly, against any person on the basis of his or her HIV status.





AUTHOR: 


Requirement 



HIV/aids and 

employment 

DISMISSAL 

11.1 Employees with HIV/AIDS may not be dismissed solely on the basis of their HIV/AIDS status. 

11.2 Where an employee has become too ill to perform their current work, an employer is obliged to follow accepted guidelines regarding 

dismissal for incapacity before terminating an employee's services, as set out in the Code of Good Practice on Dismissal contained in 

Schedule 8 of the labour Relations Act. 

11.3 The employer should ensure that as far as possible, the employee's right to confidentiality regarding his or her HIV status is 

maintained during any incapacity proceedings. An employee cannot be compelled to undergo an HIV test or to disclose his or her HIV 

status as part of such proceedings unless the Labour Court authorised such a test. 



HIV/aids and 

employment 

GRIEVANCE PROCEDURES 

12.1 Employers should ensure that the rights of employees with regard to HIV/AIDS, and the remedies available to them in the event of a 

breach of such rights, become integrated into existing grievance procedures. 

12.2 Employers should create an awareness and understanding of the grievance procedures and how employees can utilise them. 

12.3 Employers should develop special measures to ensure the confidentiality of the complainant during such proceedings, including 

ensuring that such proceedings are held in private. 



HIV/aids and 

employment 

MANAGEMENT OF HIV IN THE WORKPLACE 

13.1 The effective management of HIV/AIDS in the workplace requires an integrated strategy that includes, amongst others, the following 

elements: 

13.1.1 An understanding and assessment of the impact of HIV/AIDS on the workplace; and 

13.1.2. Long and short term measures to deal with and reduce this impact, including: 

(i) An HIV/AIDS Policy for the workplace





AUTHOR: 


Requirement 

(ii) HIV/AIDS Programmes, which would incorporate: 

(a) Ongoing sustained prevention of the spread of HIV among employees and their communities; 

(b) Management of employees with HIV so that they are able to work productively for as long as possible; and 

(c) Strategies to deal with the direct and indirect costs of HIV/AIDS in the workplace. 



HIV/aids and 

employment 

ASSESSING THE IMPACT OF HIV/AIDS ON THE WORKPLACE 

14.1 Employers and trade unions should develop appropriate strategies to understand, assess and respond to the impact of HIV/AIDS in 

their particular workplace and sector. This should be done in co-operation with sectoral, local, provincial and national initiatives by 

government, civil society and non- governmental organisations. 

14.2 Broadly, impact assessments should include: 

(i) 

(ii) 

Risk profiles; and 

Assessment of the direct and indirect costs of HIV/AIDS; 

14.3 Risk profiles may include an assessment of the following: 

(i) The vulnerability of individual employees or categories of employees to HIV infection; 

(ii) The nature and operations of the organisation and how these may increase susceptibility to HIV infection (e.g. migrancy or hostel 

dwellings); 

(iii) A profile of the communities from which the organisation draws its employees; 

(iv) A profile of the communities surrounding the organisation's place of operation; and 

(v) An assessment of the impact of HIV/AIDS upon their target markets and client base. 

14.4 The assessments should also consider the impact that the HIV/AIDS epidemic may have on: 

(i) 

(ii) 

Direct costs such as costs to employee benefits, medical costs and increased costs related to staff turnover such as training and 

recruitment costs and the costs of implementing an HIV/AIDS programme; 

Indirect costs such as costs incurred as a result of increased absenteeism, employee morbidity, loss of productivity, a general 

decline in workplace morale and possible workplace disruption; 

14.5 The cost effectiveness of any HIV/AIDS interventions should also be measured as part of an impact assessment.





AUTHOR: 


Requirement 



HIV/aids and 

employment 

15.1 A Workplace HIV/AIDS Policy 

MEASURES TO DEAL WITH HIV/AIDS WITHIN THE WORKPLACE 

15.1.1 Every workplace should develop an HIV/AIDS policy, in order to ensure that employees affected by HIV/AIDS are not unfairly 

discriminated against in employment policies and practices. This policy should cover: 

(i) the organisation's position on HIV/AIDS; 

(ii) an outline of the HIV/AIDS programme; 

(iii) details on employment policies (e.g. position regarding HIV testing, employee benefits, performance management and 

procedures to be followed to determine medical incapacity and dismissal); 

(iv) express standards of behaviour expected of employers and employees and appropriate measures to deal with deviations from 

these standards; 

(v) grievance procedures in line with item 12 of this Code; 

(vi) set out the means of communication within the organisation on HIV/AIDS issues; 

(vii) details of employee assistance available to persons affected by HIV/AIDS; 

(viii) details of implementation and co-ordination responsibilities; and 

(ix) monitoring and evaluation mechanisms. 

15.1.2 All policies should be developed in consultation with key stakeholders within the workplace including trade unions, employee 

representatives, occupational health staff and the human resources department. 

15.1.3 The policy should reflect the nature and needs of the particular workplace 

15.1.4 Policy development and implementation is a dynamic process, so the workplace policy should be: 

(i) communicated to all concerned; 

(ii) routinely reviewed in light of epidemiological and scientific information; and 

(iii) monitored for its successful implementation and evaluated for its effectiveness. 

15.2 Developing Workplace HIV/AIDS Programmes 

15.2.1 It is recommended that every workplace works towards developing and implementing a workplace HIV/AIDS programme aimed at 

preventing new infections, providing care and support for employees who are infected or affected, and managing the impact of the 

epidemic in the organisation.





AUTHOR: 


Requirement 

15.2.2 The nature and extent of a workplace programme should be guided by the needs and capacity of each individual workplace. 

However, it is recommended that every workplace programme should attempt to address the following in co-operation with the 

sectoral, local, provincial and national initiatives: 

(i) hold regular HIV/AIDS awareness programmes; 

(ii) encourage voluntary testing; 

(iii) conduct education and training on HIV/AIDS; 

(iv) promote condom distribution and use; 

(v) encourage health seeking behaviour for STD'S; 

(vi) enforce the use of universal infection control measures; 

(vii) create an environment that is conducive to openness, disclosure and acceptance amongst all staff; 

(viii) endeavour to establish a wellness programme for employees affected by HIV/AIDS; 

(ix) provide access to counselling and other forms of social support for people affected by HIV/AIDS; 

(x) maximise the performance of affected employees through reasonable accommodation, such as investigations into alternative sick 

leave allocation; 

(xi) develop strategies to address direct and indirect costs associated with HIV/AIDS in the workplace, as outlined under item 14.4 

(xii) regularly monitor, evaluate and review the programme. 

15.2.3 Employers should take all reasonable steps to assist employees with referrals to appropriate health, welfare and psycho-social 

facilities within the community, if such services are not provided at the workplace 



HIV/aids and 

employment 

INFORMATION AND EDUCATION 

16.1 The Department of Labour should ensure that copies of this code are available and accessible. 

16.2 Employers and employer organisations should include the Code in their orientation, education and training programmes of employees. 

16.3 Trade unions should include the Code in their education and training programmes of shop stewards and employees. 



HIV/aids and 

employment 

GLOSSARY 

Affected employee: an employee who is affected in any way by HIV/AIDS e.g. if they have a partner or a family member who is HIV positive.

Fani e Abe 





AUTHOR: 


Requirement 

AIDS: AIDS is the acronym for "acquired immune deficiency syndrome". AIDS is the clinical definition given to the onset of certain lifethreatening 

infections in persons whose immune systems have ceased to function properly as a result of infection with HIV. 

Epidemiological: The study of disease patterns, causes, distribution and mechanisms of control in society. 

HIV: HIV is the acronym for "human immuno deficiency virus". HIV is a virus, which attacks and may ultimately destroy the body's natural 

immune system. 

HIV testing: taking a medical test to determine a person's HIV status. This may include written or verbal questions inquiring about previous 

HIV tests; questions related to the assessment of 'risk behaviour' (for example questions regarding sexual practices, the number of 

sexual partners or sexual orientation); and any other indirect methods designed to ascertain an employee's or job applicant's HIV 

status. 

HIV positive: having tested positive for HIV infection. 

Infected employee: an employee who has tested positive for HIV or who has been diagnosed as having HIV/AIDS. 

Informed consent: a process of obtaining consent from a patient which ensures that the person fully understands the nature and implications of 

the test before giving his or her agreement to it. 

Policy: a document setting out an organisation's position on a particular issue. 

Pre and post test counselling: a process of counselling which facilitates an understanding of the nature and purpose of the HIV test. It 

examines what advantages and disadvantages the test holds for the person and the influence the result, positive or negative, will have 

on them. 

Reasonable Accommodation: means any modification or adjustment to a job or to the workplace that is reasonably practicable and will enable 

a person living with HIV or AIDS to have access to or participate or advance in employment. 

STDS: acronym for "sexually transmitted diseases". These are infections passed from one person to another during sexual intercourse, 

including syphilis, gonorrhoea and HIV, 

Surveillance Testing: This is anonymous, unlinked testing which is done in order to determine the incidence and prevalence of disease within a 

particular community or group to provide information to control, prevent and manage the disease.





AUTHOR: 


Requirement 

Code of Good practice 

on the handling of 

sexual harassment 

cases in the workplace 

CN1357 in Government 

Gazette 4 August 2005 

INTRODUCTION 

1,1 The objective of this code is to eliminate sexual harassment in the workplace. 

1.2 This code provides appropriate procedures to deal with sexual harassment and prevent its recurrence. 





APPLICATION OF THE CODE 

Although this code applies to the working environment 1 as a guide to employers, employees and applicants for employment, the 

perpetrators and victims of sexual harassment may include: 

owners 

employers 

managers 

supervisors 

employees 

job applicants 

clients 

suppliers 

contractors 

others having dealings with a business 

Nothing in 2.1 above confers the authority or obligation on employers to take disciplinary action in respect of non-employees. 

A non-employee who is a victim of sexual harassment may lodge a grievance with the employer of the harasser, where the harassment 

has taken place in the workplace or in the course of the harasser’s employment. 

Where the term “employee” is used in this code, it will be deemed to include applicants for employment. 

1 & 2 

_____________ 

Where sexual harassment occurs outside of the working environment, regard should be had to the Promotion of Equality and 

Prevention of Unfair Discrimination Act 4 of 2000.





AUTHOR: 


Requirement 





3 

SEXUAL HARASSMENT AS A FORM OF UNFAIR DISCRIMINATION 

3.1 Sexual harassment in the working environment is a form of unfair discrimination and is prohibited on the grounds of sex and/or 

gender and/or sexual orientation. 3 

__________ 

Section 6 of the Employment Equity Act 55 of 1998 provides that no person may unfairly discriminate, directly or indirectly against an employee in any employment 

policy or practice, or one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, 

age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth. 





TEST FOR SEXUAL HARASSMENT 

Sexual harassment is unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in 

the workplace, taking into account all of the following factors: 

4.1 whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation; 

4.2 whether the sexual conduct was unwelcome; 

4.3 the nature and extent of the sexual conduct; and 

4.4 the impact of the sexual conduct on the employee 





FACTORS TO ESTABLISH SEXUAL HARASSMENT 

5.1 Harassment on a prohibited ground 

5.1.1 The grounds of discrimination to establish sexual harassment are sex, gender and sexual orientation. 

5.1.2 Same-sex harassment can amount to discrimination on the basis of sex, gender and sexual orientation.





AUTHOR: 


Requirement 

5.2 Unwelcome conduct 

5.2.1 There are different ways in which an employee may indicate that sexual conduct is unwelcome, including non-verbal 

conduct such as walking away or not responding to the perpetrator. 

5.2.2 Previous consensual participation in sexual conduct does not necessarily mean that the conduct continues to be 

welcome. 

5.2.3 Where a complainant has difficulty indicating to the perpetrator that the conduct is unwelcome, such complainant may 

seek the assistance and intervention of another person such as a co-worker, superior, counsellor, human resource official, 

family member or friend. 

5.3 Nature and extent of the conduct 

5.3.1 The unwelcome conduct must be of a sexual nature, and includes physical, verbal or non verbal conduct. 

5.3.1.1 Physical conduct of a sexual nature includes all unwelcome physical contact, ranging from touching to sexual 

assault and rape, as well as strip search by or in the presence of the opposite sex. 

5.3.1.2 Verbal conduct includes unwelcome innuendos, suggestions, hints, sexual advances, comments with sexual 

overtones, sex-related jokes or insults, graphic comments about a person’s body made in their presence or to 

them, inappropriate enquiries about a person’s sex life, whistling of a sexual nature and the sending by 

electronic means or otherwise of sexually explicit text. 

5.3.1.3 Non-verbal conduct includes unwelcome gestures, indecent exposure and the display of sending by electronic 

means or otherwise of sexually explicit pictures or objects. 

5.3.2 Sexual harassment may include, but is not limited to, victimization, quid pro quo harassment and sexual favouritism. 

5.3.2.1 Victimization occurs when an employee is victimized or intimidated for failing to submit to sexual advances. 

5.3.2.2 Quid pro quo harassment occurs when a person such as an owner, employer, supervisor, member of 

management or co-employee, influences or attempts to influence an employee’s employment circumstances (for 

example engagement, promotion, training, discipline, dismissal, salary increments or other benefits) by coercing 

or attempting to coerce an employee to surrender to sexual advances. This could include sexual favouritism, 

which occurs where a person in authority in the workplace rewards only those who respond to his or her sexual 

advances.





AUTHOR: 


Requirement 

5.3.3 A single incident of unwelcome sexual conduct may constitute sexual harassment. 

5.4 Impact of the conduct 

The conduct should constitute an impairment of the employee’s dignity, taking into account: 

5.4.1 the circumstances of the employee; and 

5.4.2 the respective positions of the employee and the perpetrator in the workplace. 





GUIDING PRINCIPLES 

Employers should create and maintain a working environment in which the dignity of employees is respected. A climate in the workplace 

should also be created and maintained in which complainants of sexual harassment will not feel that their grievances are ignored or 

trivialized, or fear reprisals. Implementing the following guidelines can assist in achieving these ends: 

6.1 Employers/management and employees are required to refrain from committing acts of sexual harassment. 

6.2 All employers/management and employees have a role to play in contributing towards creating and maintaining a working 

environment in which sexual harassment is unacceptable. They should ensure that their standards of conduct do not cause offence 

and they should discourage unacceptable behaviour on the part of others. 

6.3 Employers/management should attempt to ensure that persons such as customers, suppliers, job applicants and others who have 

dealings with the business are not subjected to sexual harassment by the employer or its employees. 

6.4 Employers/management should take appropriate action in accordance with this code where instances of sexual harassment occur 

in the working environment. 





SEXUAL HARASSMENT POLICIES 

7.1 Employers should, subject to any existing collective agreements and applicable statutory provisions in respect of sexual 

harassment, adopt a sexual harassment policy, which should take cognisance of and be guided by the provisions of this code.





AUTHOR: 


Requirement 

7.2 The contents of sexual harassment policies should be communicated effectively to all employees. 

7.3 The adoption of a sexual harassment policy and the communication of the contents of the policy to employees, should, amongst 

other factors, be taken into consideration in determining whether the employer has discharged its obligations in accordance with the 

provisions of section 60(2) of the Employment Act (EEA). 

7.4 Sexual harassment policies should substantially comply with the provisions of this code and include at least the following 

statements: 

7.4.1 Sexual harassment is a form of unfair discrimination on the basis of sex and/or gender and/or sexual orientation which 

infringes the rights of the complainant and constitutes a barrier to equity in the workplace. 

7.4.2 Sexual harassment in the workplace will not be permitted or condoned. 

7.4.3 Complainants in sexual harassment have the right to follow the procedures in the policy and appropriate action must be 

taken by the employer. 

7.4.4 It will be a disciplinary offence to victimize or retaliate against an employee who in good faith lodges a grievance of sexual 

harassment. 

7.5 The procedures to be followed by a complainant of sexual harassment and by an employer when sexual harassment has occurred, 

should be outlined in the policy. 





PROCEDURES 

Employers should develop clear procedure to deal with sexual harassment. These procedures should enable the resolution of problems in 

a sensitive, efficient and effective way. 

8.1 Reporting sexual harassment 

8.1.1 Section 60(1) of the EEA provides that conduct in contravention of the EEA must immediately be brought to the attention of 

the employer.





AUTHOR: 


Requirement 

8.1.2 In instances of sexual harassment, the word “immediately” shall mean, as soon as is reasonably possible in the 

circumstances and without undue delay, taking into account the nature of sexual harassment, including that it is a sensitive 

issue, that the complainant may fear reprisals and the relative positions of the complainant and the alleged perpetrator in 

the workplace. 

8.1.3 Sexual harassment may be brought to the attention of the employer by the complainant or any other person aware of the 

sexual harassment, for example a friend, colleague or human resources official acting on the request of the complainant, 

where the complainant has indicated that she/he wishes the employer to be made aware of the conduct. However, where 

the sexual harassment is of a particularly serious nature, the complainant should be encouraged to inform the employer. 

8.2 Obligations of the employer 

When sexual harassment has been brough to the attention of the employer, the employer should: 

8.2.1 consult all relevant parties; 

8.2.2 take the necessary steps to address the complaint in accordance with this code and the employer’s policy; and 

8.2.3 take the necessary steps to eliminate the sexual harassment. 

8.3 The steps to be taken by the employer on receipt of a complaint by a complainant, should include but not be limited to the following: 

8.3.1 advising the complainant of the informal and formal procedures available to deal with the sexual harassment, as set out in 

terms 8.5, 8.6, and 8.7 of this code; 

8.3.2 where reasonably practicable, offering the complainant advice, assistance and counselling as set out in item 8.4 of this 

code, including during any disciplinary enquiry that may be instituted; and 

8.3.3 following the procedures required by items 8.5, 8.6 and 8.7 of this code, in a manner that is procedurally and substantively 

fair. 

8.4 Advice and assistance 

8.4.1 A complainant of sexual harassment may require advice and assistance, including counselling.





AUTHOR: 


Requirement 

8.4.2 As far as is practicable, employers should designate a person outside of line management who complainants may approach 

for confidential advice and/or counselling. Such person: 

8.4.2.1 could be a person employed by the employer to perform such a function, a trade union representative, a coemployee 

or a professional engaged to perform such activity; 

8.4.2.2 should have the appropriate skills and experience, including counselling and labour relations skills; and 

8.4.2.3 should be properly trained and given adequate resources. 

8.5 Advising the complainant of workplace procedures to deal with sexual harassment 

8.5.1 When an incident of sexual harassment is brought to the attention of an employer, such employer should: 

8.6 Informal procedures 

8.5.1.1 advise the complainant that there are formal and informal procedures which could be followed to deal with the 

problem; 

8.5.1.2 explain the formal and informal procedures to the complainant; 

8.5.1.3 advise the complainant that she/he may choose which procedure should be followed by the employer, except that 

in certain limited circumstances, as set out in clause 8.7.2, the employer may choose to follow a formal procedure 

even if the complainant does not wish to do so; 

8.5.1.4 re-assure the complainant that she/he will not face job loss or any adverse consequences if she/he chooses to 

follow either the formal or informal procedure; 

8.5.1.5 advise the complainant that the matter will be dealt with confidentially if the complainant so chooses. 

8.6.1 A complainant of sexual harassment may choose to follow either of the following informal procedures: 

8.6.1.1 the complainant or another appropriate person explains to the perpetrator that the conduct in question is not 

welcome, that it offends the complainant, makes him or her feel uncomfortable and that it interferes with his or her 

work; or





AUTHOR: 


Requirement 

8.6.1.2 an appropriate person approaches the perpetrator, without revealing the identity of the complainant, and explains 

to the perpetrator that certain forms of conduct constitute sexual harassment, are offensive and unwelcome, make 

employees feel uncomfortable, and interfere with their work. 

8.6.2 An employer should consider any further steps, which can be taken to assist in dealing with the complaint. 

8.7 Formal procedure 

8.7.1 A complainant may choose to follow a formal procedure, either with or without first following an informal procedure. 

8.7.2 In the event that a complainant chooses not to follow a formal procedure, the employer should still assess the risk to other 

persons in the workplace where formal steps have not been taken against the perpetrator. In assessing such risk the 

employer must take into account all relevant factors, including the severity of the sexual harassment and whether the 

perpetrator has a history of sexual harassment. If it appears to the employer after a proper investigation that there is a 

significant risk of harm to other persons in the workplace, the employer may follow a formal procedure, irrespective of the 

wishes of the complainant, and advise the complainant accordingly. 

8.7.3 The employer's sexual harassment policy and/or collective agreement should outline the following in respect of a formal 

procedure: 

8.7.3.1 with whom the employee should lodge a grievance; 

8.7.3.2 the internal grievance procedures to be followed, including provision for the complainant's desired outcome of the 

procedures; 

8.7.3.3 time frames which will allow the grievance to be dealt with expeditiously; 

8.7.3.4 that should the matter not be satisfactorily resolved by the internal procedures outlined above, a complainant of 

sexual harassment may refer the dispute to the Commission for Conciliation Mediation and Arbitration (CCMA). 

Similarly an alleged perpetrator of sexual harassment may refer a dispute arising from disciplinary action taken by 

the employer to the CCMA; and 

8.7.3.5 that it will be a disciplinary offence to victimize or retaliate against a complainant who in good faith lodges a 

grievance of sexual harassment.





AUTHOR: 


Requirement 

8.8 Disciplinary sanctions 

The employer's sexual harassment policy should specify the range of disciplinary sanctions that may be imposed on a perpetrator. 

The sanctions must be proportionate to the seriousness of the sexual harassment in question, and should provide that: 

8.8.1 warnings may be issued for minor instances of sexual harassment; 

8.8.2 dismissal may ensue for continued minor instances of sexual harassment after warnings, as well as for serious instances of 

sexual harassment; 

8.8.3 in appropriate circumstances upon being found guilty of sexual harassment, a perpetrator may be transferred to another 

position in the workplace. 





CONFIDENTIALITY 

9.1 Employers and employees must ensure that grievances about sexual harassment are investigated and handled in a manner that 

ensures that the identities of the persons involved are kept confidential. 

9.2 In cases of sexual harassment, management, employees and the parties concerned must endeavour to ensure confidentiality in the 

disciplinary inquiry. Only appropriate members of management as well as the aggrieved person, representatives, alleged 

perpetrator, witnesses and interpreter if required should be present in the disciplinary inquiry. 

9.3 Employers are required to disclose to the complainant, the perpetrator and/or their representatives, such information as may be 

reasonably necessary to enable the parties to prepare for any proceedings in terms of this code.

legal compliance register - ArcelorMittal South Africa

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