The Occupational Health and Safety Act places an explicit obligation on the employer to create and maintain a safe and healthy workplace. Notwithstanding the required health and safety regulations in terms of the COVID-19 pandemic that employers currently have to comply with, it is undoubtedly in the employer’s interest to consistently apply good hygiene in the workplace.

Good hygiene in the workplace contributes to:

• Continuity of human resources – when an employee takes sick leave, it undoubtedly impacts on the workload of other employees. The employer does not necessarily have spare capacity to address the situation and this puts pressure on the employer’s business activities.




• Saving costs by taking less sick leave – the employee is entitled to paid sick leave when he/she is unable to work due to a medical condition. When absenteeism is reduced, the employer saves money.




• Heightened productivity by counteracting presenteeism – the term “presenteeism” refers to when employees show up for work while they are ill and this leads to loss of productivity, making mistakes, etc.

Each workplace is unique. Although some businesses generally need to apply stricter hygiene measures in terms of the service or product they provide, good hygiene in any workplace is to the employer’s benefit.

Be proactive and do the following to curb the spread of infectious diseases/viruses in the workplace:

• Create awareness among employees of the benefits of good hygiene.
• Cultivate good habits regarding good hygiene – build on the COVID-19 regulations with specific reference to regular handwashing.
• Make it easier for employees to practice good hygiene in the workplace by installing handwashing stations and/or sanitiser dispensers.

Through our Bookshop the LWO also provides labour law related equipment to assist employers to proactively manage labour as a business risk. Contact John Wright for more information at john@lwo.co.za or have a look at the various products stocked here.

One of our newly added products is a wall mounted sanitising unit for dispensing liquid sanitiser. The top up sanitiser dispenser is easily mounted and works with any liquid hand sanitiser. A proven effective and simple way for promoting great hand hygiene in the workplace, and complying with COVID-19 regulations.

Are you a “designated employer”?

A “designated employer” is any employer with 50 or more employees OR an annual turnover of:

• R6 million – Agriculture
• R22.5 million – Mining and Quarrying
• R30 million – Manufacturing
• R30 million – Electricity, Gas and Water
• R15 million – Construction
• R45 million – Retail, Motor trade and Repair services
• R75 million – Wholesale trade, Commercial agents and Allied trades
• R15 million – Catering, Accommodation and other Trade
• R30 million – Transport, Storage and Communications
• R30 million – Finance and Business services
• R15 million – Community, Special and Personal services

What happens if I don’t comply?

Should a “designated employer” fail to comply with these obligations, the fine for the first offence is:

• R1.5 million or 10% of the employer’s annual turnover (whichever is the greatest); and/or
• 10 years imprisonment

What is expected of a “designated employer”?

1. Appoint a Senior Employment Equity Manager to develop, monitor and implement the Employment Equity Plan (see step 7 below). This appointment must be a permanent employee and report directly to the CEO of the business.




2. Collect information – each employee must complete the EEA1 form confirming the employee’s race, gender, nationality and any disabilities where applicable.




3. Create employment equity awareness with regards to all employees – all employees should be made aware of and informed with regards to the objectives, content and application of the EEA, its regulations and Code of good practice.




4. Establish an Employment Equity Committee to hold regular consultations with regards to compliance with the EEA. This committee must be representative of both designated and non-designated employees and all occupational levels. Trade unions in the workplace must also be involved and form part of consultation.




5. Hold regular (at least quarterly) consultations to discuss the conducting of an analysis, development of a plan and submitting of the reports to the Department of Labour. These consultations must be structured and recorded via agendas, attendance registers and minutes of meetings held.




6. Draft an analysis (EEA12) which must include the following:
   • Policies and procedures to address the under-representation of designated groups and a lack of diversity in the workplace
   • Practices and factors to promote employment equity
   • Under-representation of designated groups and occupational levels




7. Draft an Employment Equity Plan (EEA13) which must state the following:
   • Objectives for each year (the plan is valid between one to five years)
   • Affirmative action measures
   • Numerical goals for achieving equitable representation
   • A timetable for each year
   • Internal monitoring and evaluation procedures, including internal dispute resolution mechanisms
   • Identified persons to monitor and implement the plan




8. Submit Employment Equity reports (EEA2 and EEA4) on progress made with regards to the implementation of the plan. The reporting period is a twelve month period (we recommend using the employer’s financial period). Reports can be submitted electronically on the Department of Labour‘s website before 15 January 2021.

The LWO has collaboration agreements in place with a panel of service providers that specialise in the Employment equity Act and offer LWO members preferential rates. We encourage members to contact them at an early date for specialist assistance.

Take special notice of the COVID-19 pandemic’s impact on state departments, which puts pressure on time lines. Please contact the service providers directly – herewith the contact details:

• MOULDER SKILLS DEVELOPMENT CC – James Moulder: 073 096 0078 | jamesm@msdev.co.za (read more about the collaboration agreement between the LWO and Moulder Skills Development here)
• EUNIMA SOLUTIONS (PTY) LTD – Adv. Ernst Richter: 082 336 6074 | labourlawsa@gmail.com

How does it work?

When can the employer implement it?

• a client fails to make payment for work done;
• a client fails to deliver orders;
• receipt/delivery of orders are delayed;
• in the event of power failure bringing production to a halt;
• weather circumstances negatively affecting operations;
• or any other instance which is beyond the control of the employer, including the COVID-19 pandemic, etc.

Take care to follow the correct procedure?

• The employer should draft a notice to consult with the employees setting out the points of discussion, enabling the employees to prepare for the meeting.
• Issue the notice to consult and have the employees sign to confirm receipt thereof.
• If there is a trade union involved in the workplace, ensure that the notice to consult is also sent to them.
• Keep an attendance register and minutes of the meeting.
• Discuss the points as listed on the notice during the meeting.
• Give the employees the opportunity to provide alternatives to the temporary lay-offs.
• Report back on the employees’ suggestions.

Advantages of a temporary lay-off

A temporary lay-off hold definite advantages for both the employer and employee.

Employer advantages:

• “No work no pay” principle will apply.
• As it is only temporary, there is no need for the employer to take drastic action to liquidate the business.

Employee advantages:

• The employee is not dismissed and is still employed.
• The employee may claim for the UIF.

Is there a time limit on a temporary lay-off?

Written particulars of employment

The Basic Conditions of Employment Act stipulates that at the start of employment, employers must provide an employee with “Written Particulars of Employment” containing the following information:

• Employer and employee details – the employer’s full name and address as well as the employee’s name and occupation or a brief description of the work
• Employment details – place/s of work, starting date, working hours and days of work
• Payment details – salary/wage or the rate and method of calculating wages, rate for overtime, any other cash payments, any payments in kind and their value, frequency of payment and any deductions
• Leave details – any leave to which the employee is entitled
• Notice period required for termination of the employment contract
• Contract period of the employment contract – is the position of a permanent/indefinite nature; or is the position of a temporary nature, for a specific time period or for a specific project? Employers must clearly understand that to disguise what is actually permanent employment in the form of a fixed term contract is illegal.

What is the purpose of an employee’s probation period?

How does an employer ensure productivity in the workplace?

The CCMA was established as an independent, apolitical dispute resolution body in terms of the Labour Relations Act (LRA), Act 66 of 1995. It is aimed at promoting fair practices and resolving labour disputes within the working environment.

Be proactive with these top tips and ensure that the consequences of a CCMA case do not mean the end of your business:

Have clear rules and guidelines in the workplace and ensure that every employee is aware of these rules. Employers must have an up to date disciplinary code. The disciplinary code must list offences with the appropriate sanctions to use when rules are not followed.

Apply progressive discipline according to the seriousness of the offence and keep detailed record thereof.

Remember the CCMA mainly looks at two elements when an employee refers a dispute:

1. Substantive fairness – a valid and fair reason for the sanction imposed. The employer must be able to prove the following on a balance of probability:
   • Was there a rule in the workplace?
   • Was the rule reasonable?
   • Was the employee aware of the rule?
   • Did the employee break the rule?
   • Did the employer apply progressive discipline (consultation and warnings, according to the offence)?
   • Did the employer apply discipline consistently?
   • Did the misconduct justify the sanction applied?
2. Procedural fairness – the required legal procedure before imposing a sanction. An employer cannot dismiss an employee under any circumstances, even with valid reason, without holding a disciplinary hearing. This ensures that a fair procedure is followed. The employer must be able to prove the following:
   • A disciplinary hearing was held.
   • The employee was notified in writing at least 48 hours (excluding weekends and public holidays) prior to the hearing to prepare for the hearing.
   • All documentation (notice to attend the hearing and a procedural application form) contained all the necessary information required by legislation.
   • The chairman was informed and unbiased.
   • The accused employee was given every chance to prepare for and defend his/her case.
   • Aggravating and mitigating circumstances were taken into account.
   • The outcome of the hearing was based on the facts presented during the hearing.
   • The sanction was appropriate to the offence.
   • The hearing and outcome was recorded in writing by the chairperson.
   • The employee received the outcome in writing.

Labour risk is a huge business risk. To ensure the sustainability and profitability of your business, labour risk needs to be managed proactively. Not following the correct procedures can lead to dire consequences with huge financial impact.