ISOLATION – REGULATION 6(4)

Isolation takes place when an employee develops COVID-19 symptoms or positively diagnoses for COVID-19. Isolation is mandatory to avoid spreading the virus to other employees. Isolation can take place at home, in an approved isolation facility or even in a hospital if the employee has serious symptoms and need medical assistance. If the employee is hospitalised, the isolation period of 10 days may be longer until the employee achieves clinical stability according to a medical practitioner.

SELF-QUARANTINE – REGULATION 6(5)

• “Low risk” exposure – Regulation 6(6): the assessment must be done in terms of the workplace’s risk assessment plan. Once low risk exposure is determined, the employer can allow the employee to continue working. Wearing a face mask is mandatory and the employee must be monitored for 10 days for symptom development.




• “High risk” exposure – Regulation 6(7): self-quarantine for 10 days take place when an employee has had high risk exposure to COVID-19. High risk exposure means that an employee had direct, close contact (less than one meter), for longer than 15 minutes with someone that tested positive for COVID-19, did not wear a protective face mask, or had physical contact. The employee must self-monitor for symptoms.

Is the mandatory self-quarantine and isolation period 14 or 10 days?

Sick leave for self-quarantine and isolation? Regulation 6(3)(iii)

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”?

A “designated employer” has additional obligations and must take care to ensure the following is in place:

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 Employment and 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 Employment and Labour‘s website before 15 January 2022.

The LWO has collaboration agreements in place with various service providers where LWO members enjoy preferential rates, including specialists regarding the Employment equity Act. We encourage members to contact MOULDER SKILLS DEVELOPMENT CC directly for specialist assistance:

• James Moulder: 073 096 0078 | jamesm@msdev.co.za
• Rochelle Botes: 064 656 2313 | rochelleb@msdev.co.za

(Read more about the collaboration agreement between the LWO and Moulder Skills Development here.)

In the current economic climate, many employers struggle to stay competitive and profitable and must consider different options to adjust to a changing environment. Retrenchment is a no fault dismissal, as the employee did nothing wrong and dismissal is due to operational requirements. As with all dismissals, the retrenchment process must be both substantively and procedurally fair. But how does an employer decide who stays and who goes?

Selection criteria

Employers are entitled to adopt a multi-rating selection criteria such as:

• Years of service (“Last In, First Out”) and “bumping”
• Qualifications and experience
• Direct supervisor review (including an assessment of factors such as commitment to the business and team, goals, teamwork and dependability, attendance, flexibility, initiative and career potential)
• Competency, efficiency, key skills retention
• Continued service delivery
• Performance appraisals and past performance (or discipline, for that matter)
• Voluntary severance package
• Retirement package
• Redeployment package

LIFO and “bumping”

Employers and consulting parties often tend to rely on the “Last In, First Out” (LIFO) principle, which is based on years of service. However, when employees are selected for retrenchment within a particular division/department as shorter serving employees in that specific division/department, these employees may in fact have longer periods of service with the employer than employees in other divisions/departments.

“Bumping” is when employees with longer service with the employer, are then transferred to positions held by employees with shorter service in other divisions/departments.

2 forms of “bumping”

• Horizontal “bumping” – where an employee is transferred to a position of similar status, conditions of employment and remuneration; and
• Vertical “bumping” – where an employee is transferred to a position with less favourable status, conditions of employment and remuneration.

An employer must first apply horizontal “bumping” before vertical “bumping”.

The Labour Appeal Court says…

We strongly advise employers to implement clear rules in the workplace and follow correct procedures with regards to all labour matters. Employers must be proactive and act consistently especially with retrenchment and general discipline in the workplace.