The Constitution of the Republic of South Africa, 1996 is built on a fundamental principle of the achievement of equality. Section 9 of the Constitution recognises that equality has two critical dimensions. The first, known as formal equality, prohibits unfair discrimination and ensures equal treatment for all individuals. The second, referred to as substantive equality, goes a step further by acknowledging the need to examine the social and economic conditions of individuals and groups. This approach focuses on implementing remedial measures to address historical disadvantages, which aligns with its goal of achieving true or meaningful equality, not just formal equality.

The Employment Equity Act, Act 55 of 1998, as amended by Act 47 of 2013, (hereinafter the EEA) was passed to align with the aforementioned principles. The primary purpose of this Act is to eliminate unfair discrimination in the workplace and to ensure that affirmative action measures are implemented. These measures are designed to ensure that suitably qualified individuals from designated groups—such as those historically disadvantaged by apartheid—are afforded equal employment opportunities. Through this framework, the EEA aims to ensure fair representation at all occupational levels within the workforce.

What is an Employment Equity Plan?

A key component of the EEA is the requirement for designated employers to design and implement an Employment Equity Plan. The purpose of this plan is to enable employers to make reasonable progress toward achieving employment equity within their businesses. By implementing an Employment Equity Plan, employers demonstrate their commitment to eliminating unfair discrimination in the workplace and to achieving equitable representation of designated groups through affirmative action measures.

Who does employment equity apply to?

Employment equity applies to:

• Employers who employ 50 or more employees.
• Employers who employ fewer than 50 employees but whose annual turnover equals or exceeds the amounts specified in Schedule 4 of the EEA.
• Employers who have been declared designated employers under a collective agreement.

These designated employers are legally required to implement Employment Equity Plans in their workplaces.

But what does an Employment Equity Plan entail, and what must it include?

Key Components of an Employment Equity Plan

An Employment Equity Plan must clearly outline the steps the employer will take to achieve the objectives of employment equity, including annual objectives, affirmative action measures, and numerical goals for equitable representation of designated groups. The plan must include a timetable for achieving both numerical and non-numerical goals, a monitoring process, procedures to resolve disputes, and the identification of those responsible for implementation. The plan must have a duration between one and five years.

Employers, however, are not left to navigate this process without guidance. The Department of Employment and Labour has published a Code of Good Practice as well as a guide to tailor plans to meet the employer’s specific needs while still adhering to the requirements as set out in the EEA.

This code, together with a user guide, offers a structured approach for employers to follow in preparation, implementation, and monitoring of Employment Equity Plans. 

Steps to implement an Employment Equity Plan

• Consultation: Employers must engage in meaningful consultation with trade unions and employees. This ensures that the plan is understood and accepted by all stakeholders, giving employees a voice in shaping the workplace’s future.
• Workforce analysis: Employers must conduct a comprehensive review of their current employment policies and workforce profile. This process helps identify barriers and areas where the business may be falling short in terms of employment equity.
• Develop and implement the Plan: Once barriers are identified, the employer must develop a detailed plan that sets out specific affirmative action measures. These measures should address the underrepresentation of designated groups at various occupational levels and provide clear steps toward meeting the business’s employment equity goals.
• Reporting and monitoring: Employers are required to report their progress to the Department of Employment and Labour. This reporting process allows the Department to monitor compliance with the EEA and ensure that employers are actively working toward eliminating workplace discrimination.

Reporting period

The reporting window will run from the first working day of September 2024 until 15 January 2025 for online submissions.

Consequences of non-compliance

Failure to comply with the EEA can have serious legal and financial repercussions for designated employers. The Labour Court also has extensive powers under the Act, including the authority to impose fines as outlined in Schedule 1 of the EEA, order compliance, or direct the Commission for Conciliation, Mediation and Arbitration (CCMA) to conduct further investigations.

Conclusion

In summary, the EEA is a vital legislative tool designed to foster equality and redress the imbalances created by South Africa’s history of discrimination. For designated employers, implementing an Employment Equity Plan is not just a legal obligation but a necessary step toward building an inclusive workplace. By engaging with employees, analysing policies, and reporting progress, employers can ensure they contribute to the broader goal of achieving true equality in South Africa’s workforce.

We are proud to announce that the LWO Employers Organisation is affiliated with Labour Quest, which will handle all services related to the Employment Equity Act going forward. Please contact us for more information: Employment Equity | Labour Quest.

Not an LWO member yet? Take a look at our membership packages.

Theft in the workplace is a serious misconduct that places additional pressure on a business in terms of profitability and sustainability. Each year hundreds of thousands of cases are referred to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) due to alleged unfair dismissal, of which many cases are related to misconduct that lead to dismissal.

An employer cannot dismiss an employee under any circumstances, without holding a disciplinary hearing to ensure that a fair procedure is followed and that there is a fair substantive reason (proof) for the employee to be dismissed.

Theft is defined as the action or crime of stealing – taking goods belonging to another, without permission and with the intention of permanently depriving the owner (lawful possessor) of its use and possession. In charging an employee with theft, an employer must be able to prove on a balance of probability that:

• the employee took goods which didn’t belong to him/her;
• the employee knew that he/she required permission to take such goods and didn’t have such permission;
• by taking the goods, the employee deprived the employer of its use and possession; and
• the employee didn’t intend to return the goods to the employer.

A disciplinary code is vital to ensure that there are clear rules in the workplace, with appropriate sanctions, for employees to follow.   When these rules are broken the employer can apply progressive discipline (warnings) or in cases of severe misconduct proceed directly to a disciplinary hearing. In most cases of theft, dismissal as a sanction is appropriate as the rule against theft is not only well known, but goes to the root of the employment relationship that binds an employee to act in good faith and to further the employer’s interests. This misconduct can negatively impact the employment relationship, rendering trust irreconcilable.

To prove the employee’s actions – taking the goods – the employer can call witnesses who can attest to the employee’s actions, or were present when the goods were found in the employee’s possession. The employer can also make use of cameras in the workplace, but only with employees’ permission as this can be seen as violation of the employee’s rights. To prove the employee’s intentions – aware of the lack of permission and intention not to return the goods – the employer should determine the employee’s “state of mind” by considering the nature of the stolen goods and the explanation provided by the employee.

When the employer has insufficient proof to charge the employee with theft, the employer can resort to charging the employee with related alternative offences, provided that these offences are set out in the disciplinary code. These offences include “unlawful possession of property”, “unlawful removal of property”, “misappropriation”, or even “fraud”, depending on each case’s merits.

We strongly advise employers to implement proactive measures to combat theft in the workplace. Herewith a few guidelines employers can follow:

• Use labour legislation to your benefit in drafting your employment contracts by including proactive clauses that require the employee’s permission, such as the installation of cameras in the workplace and search of employees as well as their belongings.
• Ensure that your disciplinary code is relevant and up to date regarding offences and appropriate sanctions. Also ensure that all employees are aware of what the disciplinary code entails.
• Employ security personnel. Where possible, try to outsource this function to ensure less collusion between security personnel and company employees.
• Control access and exit points to the company.
• Improve the recruitment process by including reference and criminal checks.
• Encourage employees to report dishonest conduct of co-workers.

In general arbitration awards in favour of the employee are due to the lack of following correct procedure on the employer’s behalf. We strongly advise employers to implement clear rules in the workplace and follow correct procedures with regards to all labour matters, especially dismissal and general discipline in the workplace, by acting pro-actively.

Contact the LWO for advice and assistance with these situations.
Not an LWO member yet? Take a look at our membership options.

We advise employers to address labour as a business risk proactively in order to promote a working environment with reduced conflict, friction and misunderstanding, which in turn creates a structured environment receptive for growth.

Absenteeism is a common issue in the workplace with a huge impact on business activities. The employer must address absenteeism effectively to ensure productivity.

What does absenteeism mean?

Apart from not being at work without permission, absenteeism can be seen as a broader category which also includes:

• Arriving late to work (it is still absence as long as the employee is not at work)
• Leaving work early
• Unauthorised breaks
• Extended breaks (smoke, toilet, lunch, tea, etc.)
• Feigned illness
• Other unexplained absences from the workstation or from the premises

It is the employee’s duty to commence and end duties at the times required, and/or contractually agreed to with the employer. When employees do not follow the rules, employers have the right to act in accordance with the workplace disciplinary code, which not only stipulates the rules of the workplace, but also the appropriate sanction. It is vital that these rules are discussed with employees and reduced to writing. The employers can only then prove that employees are aware of the rules as well as the consequences when these rules are broken.

How do you deal with absenteeism?

There are three important steps:

• Interview the offender and write down what he/she says.
• The employee must prove that the absence was justified.
• Reasons may be produced by the employee, but even if a reason might seem valid it can still be unacceptable – apply your disciplinary code.

The employee should always notify the employer by any means possible of his/her absence. It is very seldom that there are no means whatsoever available of notifying the employer of the absence.

Note however, that even if the employee does notify you that he/she will be absent for the day, such notification does not mean that the absence is now authorized. You have three options depending on the circumstances:

• Request him/her to come to work
• Treat the absence as authorized and pay the employee for the period absent
• Process the absence as unpaid leave

It is important to record and keep record of all incidents, including absenteeism and late coming, in an incident book or an employee file and act according to your disciplinary code. Sanction given must always be fair for the type of misconduct

Absence after permission has been refused

Desertion

When is sick leave due?

Firstly, it is important to know that under the Basic conditions of Employment Act “BCEA” sick leave works on a 36 month cycle unlike other forms of leave that work on a 12 month cycle. Sick leave is generally equal to the number of days that an employee would ordinarily work during a 6-week period, for example: In a 36 month leave cycle an employee is entitled to 30 days paid sick leave (if the employee works 5 days per week) or 36 days paid sick leave (if the employee works 6 days per week). This leave cycle commences, irrespective of a probation period, on the first day of employment and paid sick leave taken during the first six months of employment can be deducted from it. However, paid sick leave is calculated during the first six months of employment as 1 day paid sick leave for every 26 days worked.

Is it paid or unpaid leave?

Firstly, is paid sick leave due? If yes, you must determine whether a medical certificate is needed.

• A medical certificate has to be presented if an employee is absent from work on more than two occasions or more than two consecutive working days within an eight-week period.
• A medical certificate is not needed if an employee is absent from work on one, or two occasions where the period of absence is for two or less working days within an eight-week period.

If paid sick leave is not due, there are two options:

• you can process it as unpaid leave; or
• you can process it as paid leave and deduct it from the employee’s annual leave (if the employee agrees to it).

When is a medical certificate valid?

A medical certificate must state that the employee was unfit to work. It is not a valid medical certificate if it only states that the employee attended the clinic, as that will only prove where the employee was that day, but not entitle the employee to paid sick leave.

A medical certificate may only be issued by a:

• medical practitioner;
• clinic nurse practitioner;
• traditional healer (registered with the Traditional Healers Association);
• community health worker;
• psychologist; or
• any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament; or
• any other health professional authorised to diagnose medical conditions.

What information should appear on a medical certificate?

What is the employer’s rights and responsibility?

Employees that report for duty under the influence of alcohol present a real problem which employers are faced with on a regular basis. The use of alcohol affects an employee’s sight, speech, coordination and reaction speed. Employees working with machinery or driving a vehicle, who are under the influence of alcohol, hold a high risk for the employer, themselves and their colleagues. It is the employer’s responsibility to create a safe working environment for all employees and must therefore always act in accordance with the disciplinary code.

HOW TO DETERMINE IF AN EMPLOYEE IS UNDER THE INFLUENCE

Labour legislation does not specify the symptoms to determine whether an employee is under the influence of alcohol. Therefore it is vital to implement an alcohol policy in the workplace. Employees can also be tested for alcohol during working hours, but only if this is stipulated in their employment contracts or in an alcohol policy, or if the employee has given his/her permission.

In general, employers can consider the following symptoms in order to determine whether an employee is under the influence of alcohol:

• Red and bloodshot eyes with enlarged pupils;
•  Slurred and incoherent speech;
• Change in behaviour;
• Staggering, i.e. the employee is disoriented;
• Attitude / Reaction;
• Out of character reaction to questions;
• Breath smells like alcohol .
• Eye focus;
• Eye / hand co-ordination /delayed reaction and coordination;
• General demeanour and appearance.

How to act when an employee is under the influence:

• Call the employee aside, preferably to an office.  Ensure that a witness is present.
• Determine whether the employee is under the influence.  Request the employee to blow into an alcohol tester.  If you do not have such a device, you can take the employee to a physician for blood tests to determine his/her alcohol level.
• If none of these methods are available, or if the employee refuses to give his/her cooperation and permission, it is vital to record his/her behaviour.  Ask witnesses to also record their observations, which must be in writing.
• If you have determined that the employee is under the influence, or reasonably suspect same, then send the employee home for the rest of the day, without pay, and request the employee to report again for work the following day.
• Follow the correct procedure as per your disciplinary code and related workplace policies.  Keep in mind that the sanction given must be appropriate in relation to the type of work performed by the employee.

• Labour Relations Act (“LRA”)
• Basic Conditions of Employment Act (“BCEA”)
• Sectoral Determinations
• National Minimum Wage Act (“NMWA”)
• Compensation for Occupational Injury and Diseases Act (“COIDA”)
• Employment Equity Act (“EEA”)
• Occupational Health and Safety Act (“OHSA”)
• Unemployment Insurance Act (“UIF”)
• Skills Development Act (“SDA”)

Before such an inspection, the employer has the right to first verify the identity of the person claiming to be a labour inspector, before granting the person access to the workplace.

How to verify the identity of a labour inspector

A labour inspector is appointed by the Minister of Employment and Labour and is issued with a certificate that states the following:

• that the person is a labour inspector appointed by the Department of Employment and Labour;
• the legislation that the labour inspector may monitor; and
• the functions the labour inspector may perform.

There are cases where persons impersonate labour inspectors, wanting to gain access to the workplace for various reasons. Therefore, it is vital for the employer to exercise his/her right to verify the identity of the person claiming to be a labour inspector and insist on a certificate and proper identification. Should the person not have the relevant documentation on hand, the employer can refuse him/her access to the workplace or contact the Department of Employment and Labour directly.

It is important to note that a labour inspector may not charge a fee for the inspection or any advice or assistance. A labour inspector may also not sell posters, products or information. The Department of Employment and Labour does not delegate any third party to conduct an inspection on behalf of the Department– none of the Department of Employment and Labour’s powers may therefore be delegated.

Access to the workplace

Labour inspectors may enter the following workplaces (premises where business is conducted, where training of employees take place and registered employment offices) at any reasonable time without notice or a warrant, to monitor and enforce compliance with labour legislation

A labour inspector may not, however, enter the residential premises of an owner or tenant without permission or written authorisation

In some instances, a labour inspector will notify employers of a planned visit. Questions that will be asked and addressed during the inspection are usually included in such a notification

A labour inspector will usually check the following during an inspection:

During an inspection a labour inspector will check various points in terms of compliance with labour legislation and can request copies documents, including but not limited to employment contracts and payslips. Labour inspectors in many instances also interview one or two of the employees. Other frequent points for inspection include:

• Proof of registration with the Workman’s Compensation Fund and Unemployment Insurance Fund, as well as proof of the last payments made.
• Is there a summary of the following legislation displayed in the workplace?
• Basic Conditions of Employment Act
• Employment Equity Act
• Occupational Health and Safety Act and the Regulations..
• Is there a Health and Safety Representative as well as committee members where applicable appointed in the workplace? This appointed person should have a letter of appointment, and the labour inspector will request the minutes of the previous meetings that were held.
• Are the employer and employees trained to recognise health and safety problems? Examples include:
• Are moving parts like drive belts and chains guarded?
• Are chemicals used safely and stored in a safe place?
• Are emergency exits clearly marked and easily accessible?
• Are fire extinguishers accessible and serviced regularly?
• Are flammable materials stored and used correctly, for instance not near fires?
• Are all electrical wires insulated and proper plugs used in your workplace?
• Does the employer have fully equipped first aid boxes on the premises?
• Does the employer report occupational injuries and deceases to the Department of Labour?
• Does the employer have clean and hygienic toilets and washing facilities provided for male and females?
• Does the employer have an attendance register at your workplace?
• Does the employer have the applicable Sectoral Determination or Bargaining Council Agreement available for the employees?
• Does the employer pay at least the prescribed minimum wage where applicable?

Consequences of non-compliance

Labour inspectors can issue notices to rectify areas that they pick up where the employer does not comply, immediately issue a compliance order. Legal implications and consequences for the employer in cases of non-compliance can include fines (between R300 (minimum) to R1500 (maximum) per employee) and imprisonment (one year (minimum) to six years (maximum)).

Employers cannot afford not to address registration and have labour related documentation, policies and procedures implemented in their businesses. Not only does it minimise the risk of disputes and uncertainty between employers and their employees, but it also ensures that the most prevalent labour legislation specific to the industry is complied with.