"If a company simply transfers labour law requirements to a human resource manager or department, without oversight and without ensuring that the manager or department is sufficiently and continuously informed on the context of those requirements within the greater legal landscape, then it is possible that a rote and often incorrect application of requirements will be applied," says Methven.
For example, the Code of Good Practice on Sexual Harassment in the workplace suggests that an employer must handle harassment claims confidentially. However, if harassment by one employee takes on a particularly serious form, then not informing the authorities may result in the employer becoming an accessory to a crime, or attempting to defeat the ends of justice.
This need for context of human resource management within the law is also the reason why The Institute will make health and safety compliance risk management plans available in 2013.
"Codes of Good Practice do not override the law," says Pieter Stassen of Contemporary Gazette. "Codes of Good Practice from the Department of Labour and the Department of Trade and Industry are indicative of a very healthy legal environment whereby one is not only told what to do, but effort is actually made to assist people to understand the law as it applies to them."
However, says Stassen, it is important to remember that the Codes do not override all law, especially Constitutional law. If a company can show reasonableness in its actions, in other words if it can show that it has considered the Codes and can explain reasonably why a particular suggestion in a Code hasn't been applied, they are more likely to escape sanction, or have mitigating circumstances considered.
For example, the definition of unfair discrimination in the Code of Good Practice on HIV and AIDS and the world of work may be in conflict with, amongst others, the Constitutional Right to Equality, the application of the Bill of Rights as a whole, the Promotion of Equality and Prevention of Unfair Discrimination Act, as well as the National Credit Act approach to discrimination and the Consumer Protection Act approach to equality.
"The Code defines unfair discrimination as any distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity, or treatment in employment or occupation," Stassen says.
Fair differentiation is never unfair discrimination if you consider the laws referenced above; or even laws referenced in the Code itself. Having health care workers with treatment-resistant communicable diseases seeing patients, cannot be in the public interest. The definition given is unfortunate as the content of the Code shows that fair differentiation is understood - the definition should have been simply a definition of discrimination, leaving out the word 'unfair'.
Companies that wish to go beyond the limited scope of the Codes may still find their content useful for consideration, Stassen says. "For example, some of the approaches suggested for dealing with HIV/Aids may also be considered with regards to employees who suffer from other serious illnesses and diseases, but who are not specifically considered, assisted or even protected according to their type of illness."
