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, No. 55 of 1998, as amended (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 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 is considered to be a designated employer

Under the EEA a designated employer means:

• Employers who employ 50 or more employees
• A municipality, as referred to in Chapter 7 of the Constitution
• An organ of state as defined in Section 239 of the Constitution, but excluding the National Defence Force, the National Intelligence Agency and the South African Secret Service
• 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.

Key issues considered in the employment equity plan

An employment equity plan must clearly detail the actions an employer will take to meet employment equity objectives. This includes setting annual targets, implementing affirmative action measures and establishing numerical goals to ensure fair representation of designated groups. The plan should also outline timelines for achieving both numerical and non-numerical goals, include a monitoring and evaluation process, define procedures for resolving disputes, and identify the individuals responsible for implementation.

The Employment Equity Amendment Act, No. 4 of 2022 became operational from 1 January 2025. Subsequently, two sets of employment equity regulations on reporting forms and other templates, as well as the five year sector employment equity targets for the 18 economic sectors were published on 15 April 2025, providing guidelines to employers and employees on how to interpret and implement the recent employment equity amendments and sector targets.

Following recent amendments, employers are now required to adopt a five year employment equity plan covering the period from 1 September 2025 to 31 August 2030. Employers who become designated after this period begins may develop a plan that spans the remaining duration.

Reporting period for online submissions

The online reporting window generally runs from the first working day of September until the 15th of January of the next year for online submissions. The online submission employment equity portal opened on 1 September 2025 and the closing date for submissions is 15 January 2026.

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 up to and including R 2,7 million or 10% of the employer’s annual turnover, whichever is the greater.

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.

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New code, old lessons – don’t believe the hype:  dismissals still aren’t simple. Ever since the new Code of Good Practice: Dismissal (CGPD) was published in draft form for public comment in January 2025, public discussion has largely centred on how it would finally make dismissals simpler, quicker, and less cumbersome, especially for smaller employers dealing with the proverbial “rotten apples” guilty of misconduct.

Business owners therefore understandably expected that, with the new CGPD taking effect on 4 September 2025, dismissing an employee for serious misconduct would now be a mere formality. However, that perception is a dangerous oversimplification of what the new code actually changes.

Simpler processes – but still bound by fairness

Item 3(3) of the CGPD provides that:

“For example, small businesses cannot reasonably be expected to engage in time-consuming investigations or pre-dismissal processes while at the same time keeping the business going. It should also be borne in mind that small employers do not have human resource departments offered by people with skills and experience in these matters.”

While this appears to offer flexibility to smaller employers, the fundamental requirements of fairness remain unchanged. Dismissals must still be based on a fair reason, follow the employer’s internal policies and comply with a fair procedure, albeit that the employer may now implement a more practical and less formal disciplinary policy.

In outlining what a fair procedure entails, the CGPD includes several provisions. Notably, Item 11(3) states:

“An investigation or inquiry does not have to be formal. Its nature should be appropriate to the circumstances, including the type of allegation and the nature and size of the employer.”

Unfortunately, the CGPD offers no clear guidance on what level of process is appropriate for different sizes of employers. It therefore remains to be seen whether focusing on a thorough investigation, rather than a lengthy, courtroom-style disciplinary hearing will be considered sufficient.

The CCMA’s role remains the same

Importantly, the role of the Commission for Conciliation, Mediation and Arbitration (CCMA) in considering the fairness of a dismissal has not changed. The fact that a dismissed former employee may refer an unfair dismissal dispute with the expectation of a complete rehearing of the matter before an arbitrator, has thus not changed either. This basically means that the employer’s role when conducting the investigation also remains largely the same.

Therefore, in practice, an employer’s responsibility to gather and preserve evidence early on has not changed. In fact, it has become even more critical. Employers who opt for a simplified internal process must ensure that the evidence supporting the dismissal is solid, well-documented, and preserved for potential CCMA scrutiny.

By the time the employer’s first witness (often the business owner) is cross-examined at arbitration, it is far too late to start looking for missing, or poorly recorded, evidence. Few employers have the internal capacity to conduct proper investigations into serious misconduct or criminal activity, and where such capacity exists, it is rarely independent or adequately equipped to handle complex or sensitive cases.

Specialist investigations

This is why making use of a specialist investigator is an important tool for employers to prepare for a hearing in a professional and fair manner, especially when dealing with complex or sensitive matters.

LWO members are reminded that a specialist ad hoc pre-hearing investigation service is available to members through our partnership with Labour Quest. This service is led by Adv Ben Lategan, an experienced legal practitioner and specialist investigator.

Don’t wait until you are sitting at the employee’s disciplinary hearing or, even worse, the CCMA, before starting a proper investigation and preparation process. Simpler processes might not always be better, and simpler procedures do not necessarily mean guaranteed outcomes.

Contact the LWO if you would like to make use of this service or request further details. Alternatively, you can contact Labour Quest directly for more information on 076 091 4647 or via e-mail: info@labourquest.co.za.

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Retrenchment is the no-fault termination of an employee’s services and is governed by Section 189 of the Labour Relations Act, Act 66 of 1995 as amended (LRA) and the Code of Good Practice: Dismissal (the Code).  Retrenchment becomes necessary when there are operational requirements to reduce the workforce.  Operational requirements are defined as requirements based on economic, technological, structural or similar needs of the employer.

The retrenchment process

The retrenchment process is clearly set out in Section 189 and 189A of the LRA and must be followed to ensure that such process is both substantively and procedurally fair.

It is important for employers to take note that the retrenchment process must be instituted as soon as it is contemplated. The process of retrenchment can take a considerable amount of time as it depends on various factors such as the number of employees involved and the scale of the intended retrenchment. Employers are therefore warned not to leave it to the last minute to commence with the retrenchment process.

All reasonable alternatives

Employers are encouraged to commence with the process well in advance to establish if there are any actions that can be taken to avoid retrenching any employees.  The retrenchment process entails that all reasonable alternatives must be exhausted in order to try and prevent any retrenchments, and the courts have stated that retrenching any employee must be the last resort.

Examples of reasonable alternatives can include short time, reduction in salaries, transferring employees to other departments, reducing overtime, bumping and voluntary separations just to mention a few.  It is important for employers to discuss the alternatives with employees in order to obtain their consent before it can be implemented.

Follow the procedure

The below procedure must be followed when the employer contemplates the possibility of retrenchment (for the purpose of this article we’ll only look at retrenchments under Section 189 and not Section 189A-large scale retrenchments).

1. Issue a notice of possible retrenchment consultation in terms of Section 189 of the LRA

This notice must contain the date, place and time of the meeting and other specific details, which include:

• Number of employees and job categories that will most likely be affected
• Reason for possible retrenchments
• Alternatives that have been considered by the employer (including whether those alternatives have been pursued by the employer and if not, the reasons why; also whether any alternatives are offered and what they entail)
• Selection criteria/Proposed method of selecting employees to retrench
• When the proposed retrenchment will most likely take place
• Proposed severance pay
• Assistance that can be offered by the employer to the affected employee(s)
• Possibility of future re-employment and who it will be offered to first, as well as the arrangements for keeping in contact
• Number of employees employed
• Number of employees dismissed for operational requirements in the past 12 months

This notice must be issued to the following persons:

• All employees that are most likely to be affected by the retrenchment
• Any person whom the employer must consult with in terms of a collective agreement, if none the notice must be issued to the workplace forum
• The trade union representative if the employees are represented by a trade union

2. Proper consultation process

Proper consultation must be held with employees that will most likely be affected by the retrenchment, or with their trade union representative.  During the consultation, all aspects as contained in the notice must be discussed in full.  The employees, or representative, must be granted the opportunity to provide their feedback on all aspects, as well as alternatives that can be considered in order to prevent retrenchment.  This could entail that further consultations must be scheduled to continue discussing possible alternatives or any other aspect that must be clarified.

The retrenchment process is a consensus seeking process during which the parties must try and reach an agreement on how the retrenchments (and its effects) can be avoided and mitigated as far as possible.

If there are no reasonable alternatives that can be implemented and retrenchments cannot be avoided, notice of retrenchment must be issued to the affected employees. Employers that are regulated by bargaining councils should also ascertain whether there are council/collective agreements that regulate retrenchment processes.

In conclusion it should be noted that dealing with retrenchments contain a lot of pitfalls and employers should contact the LWO to obtain proper advice before beginning with the process.

Contact the LWO for any advice or assistance!

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A probation period is the period at the beginning of an employment relationship. The purpose of probation is to give the employer an opportunity to evaluate the employee’s performance and suitability for employment before confirming appointment.

Length of the probation period

The length of the probation period is not prescribed by legislation. The duration of the probation period should be determined by the employer and must be reasonable, considering the nature of the job and the period in which the employer requires to determine whether the employee can do the job that is expected.

A probation clause

It is essential to add a probation clause to all employment contracts, whether permanent or fixed term. This is a very important period where the parties can get to know each other and where the employer can determine the employee’s capabilities. The employee will be aware of how long the evaluation period will be and should also be made aware that during this period, the employer must advise the employee of any assistance that is required to perform satisfactorily.

Assessment

The employer is required to do continuous assessment where reasonable evaluation, instruction, training, guidance or counselling is given to allow the employee a fair opportunity to render satisfactory service. If the employee is falling short of the standard, the employer should advise the employee where the employee’s work is below standard and grant the employee a reasonable period to bring their work up to standard.

Extending the probation period

An employer may consider extending the probation period or may follow proper procedures to dismiss an employee. A probation period may be extended to further give the employer the opportunity to evaluate the employee’s performance. The extension period should be reasonable and fair. Prior to any of these options being exercised by the employer, the employee must first be given the opportunity to make representations which must be considered by the employer.

Be careful

Probation should not be used to deprive employees of the status of permanent employment. For example, a practice of dismissing employees at the end of their probation periods for reasons unrelated to their performance or suitability for employment and replacing them with newly hired employees is inconsistent with the purpose of a probation period and may constitute an unfair dismissal.

Similarly, if there is a permanent position available, an employer should not appoint an employee on a fixed term contract and conceal the real reason for the fixed term contract. Therefore, an employer cannot use a fixed term contract for each person that is hired until they find the person that is best suited for the job. This may be regarded as an unfair dismissal. If there is no valid reason for a fixed term contract, it may be regarded as a permanent contract until the contrary is proven.

Dismissal

If an employee was dismissed during or after a probation period and the procedures were not followed correctly, or the reason for the dismissal is unfair, an employee may refer either an unfair labour practice or unfair dismissal dispute to the Commission for Conciliation Mediation and Arbitration (CCMA). An applicant at the CCMA has 90 days to refer an unfair labour practice dispute and 30 days to refer an unfair dismissal dispute.

Employers must ensure that employees are appointed in line with legislation, using the right employment contracts and following correct procedures during the probation period. Failure to comply with the law will become a very costly exercise when a matter is referred to the CCMA.

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Update on the BCEA:  maternity leave is out and parental leave is in;  apex court levels the playing field. On 3 October 2025 the Constitutional court declared Sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act 75 of 1997 (BCEA) unconstitutional. These sections govern maternity, parental, adoption, and commissioning parental leave.  The groundbreaking judgment was handed down in the cases of Van Wyk and Others v Minister of Employment and Labour and Commission for Gender Equality and Another v Minister of Employment and Labour and Others [2025] ZACC 20.

The Constitutional court has recognised that South Africa’s parental leave laws were unfair to many families and found that the sections dealing with maternity, parental, adoption, and commissioning parental leave were unconstitutional because they failed to treat all parents equally and with dignity.

Importantly, the court affirmed that all parents, whether through birth, adoption, or surrogacy should be free to decide together how to share the responsibilities of raising their child. Laws that prevent families from making those choices without any legitimate reason not only discriminate but also intrude on their personal/family lives, which unnecessarily impacts their human dignity.

Previously

Before this landmark judgment, the BCEA provided for differentiated leave entitlements based on the role of the parent. Specifically:

• Section 25 granted a birth mother at least four consecutive months of unpaid maternity leave, typically starting one month before the expected due date.
• Section 25A allowed ten days of unpaid parental leave to the father or non-birth parent, to be taken for the first ten days after the child’s birth or adoption.
• Section 25B provided for unpaid adoption leave of ten weeks to one adoptive parent, while the other adoptive parent would only qualify for parental leave in terms of Section 25A.
• Section 25C provided a similar framework of unpaid commissioning parental leave for commissioning parents in a surrogate motherhood agreement, allowing one parent 10 weeks of unpaid leave whereas the other would qualify for parental leave in terms of Section 25A.

The new ‘law’ under the BCEA

Even though the literal text of the BCEA has not yet changed, the court has given Parliament 36 months to enact remedial legislation which addresses the unconstitutionality of these sections and until then the court has given an interim “reading-in” of amendments to the BCEA to cure the inequality in parental leave.  It is summarised as follows:

1. Parental leave

• Single parents or the only employed parent: at least four consecutive months parental leave.
• If both parents are employed: a combined entitlement of four months and 10 days, taken concurrently or consecutively as agreed.
• If no agreement: leave is split equally as far as possible, starting from the child’s birth, provided that female employees who are giving birth to the child may begin leave from four weeks before birth, or earlier if medically required, and may not return to work for six weeks after birth, unless certified fit by a medical practitioner.

2. Adoption leave

• A single or only employed adoptive parent of a child under two years of age: four months adoption leave.
• If an adoption order is made in respect of two adoptive parents, both parties are entitled in the aggregate to four months and 10 days, taken in any agreed manner (concurrently, consecutively, or a mix).
• If no agreement: adoption leave is apportioned as near as possible to half each, provided that such balance is completed within a period of four months from the adoption of the child.
• Leave may start on the date that the adoption order is granted or placement by a competent court pending the finalisation of adoption, whichever is earlier.

3. Commissioning parental leave

• Starts from the date a child is born as a result of a surrogate motherhood agreement.
• A single commissioning parent in a surrogate motherhood agreement: four months commissioning parental leave.
• Two commissioning parents: they shall each be entitled in the aggregate to four months and 10 days combined, taken as agreed including concurrently or consecutively, or partly concurrently and partly consecutively, and if no agreement then the leave is apportioned equally, provided that such balance is completed within a period of four months of the child’s birth.

Interestingly the term “maternity leave” has been removed from these sections and replaced with “parental leave”. This judgement marks a significant shift towards equality and flexibility in parental leave whilst recognising diverse family structures and ensuring more equal access to parental leave.

Each workplace is unique and this judgement might not affect all employers in all industries the same. Employers should contact the LWO for expert advice on their individual workplace needs and update internal policies and practices to remain compliant and support all parents fairly.

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Die Minister van Indiensneming en Arbeid, Nomakhosazana Meth, het op 4 Februarie 2025 die aanpassing in die nasionale minimumloon vir 2025 in die Staatskoerant gepubliseer. Die nuwe nasionale minimumloon wat reeds op 1 Maart 2025 in werking getree het is vasgestel op R28.79 per normale werksuur. Hierdie loon is van toepassing op werknemers wat resorteer onder die bestek van die Wet op Basiese Diensvoorwaardes, Wet 75 van 1997 soos gewysig (WBDV).

Nasionale Minimumloonkommissie

Ingevolge die Nasionale Minimumloonwet Wet, Wet 9 van 2018 soos gewysig (NMLW), beoordeel en hersien die Nasionale Minimumloonkommissie (die Kommissie) jaarliks die nasionale minimumloon. Die Kommissie maak daarna ‘n aanbeveling aan die Minister van Indiensneming en Arbeid om die loon aan te pas.

Die kriteria wat die Kommissie oor die algemeen gebruik om die voorgestelde verhoging te bepaal, is die verbruikersprysindeks (VPI) plus ‘n addisionele persentasiepunt (gewoonlik 1.5%). Sleutelfaktore soos voorgeskryf deur die NMLW word ook in ag geneem en sluit dit die volgende in: inflasie en lewenskoste, loonvlakke en kollektiewe bedingingsuitkomste, die Bruto Binnelandse Produk (BBP) en produktiwiteit. Verdere faktore sluit in werkgewerlewensvatbaarheid en die impak op indiensneming, asook openbare insette.

Die Departement van Indiensneming en Arbeid het op 18 Desember 2024 in ‘n mediaverklaring aangedui dat die Kommissie in sy voorlopige verslag ‘n jaarlikse verhoging in die nasionale minimumloon in die omgewing van VPI + 1.5% vir 2024/2025 ondersoek.

Gegewe inligting wat ten tye van die artikel deur Statistieke Suid-Afrika reeds beskikbaar was kan ons sien dat die VPI met 0.1% verhoog het van 2.9% vir November 2024 tot 3.0% vir Desember 2024, wat die nasionale minimumloonverhoging dus op ongeveer 4.4% bereken het. Die Kommissie het in ooreenstemming hiermee, dié voorstel gemaak aan die Minister.

Dit is wel interessant dat die nuwe loon ook in lyn is met die algehele gemiddelde VPI vir 2024 van 4.4% soos gepubliseer deur Statistieke Suid-Afrika vroeër die jaar.

Kwytskelding

As ‘n werkgewersorganisasie weet ons besighede word bedryf in ‘n uitdagende omgewing. Die nasionale minimumloon met gepaardgaande verhogings plaas dikwels bykomende druk op werkgewers aangesien daar nie oor die betaling van die loon onderhandel kan word nie. Dit is wel belangrik dat werkgewers weet dat hul versuim om aan die NMLW te voldoen kan lei tot fel boetes.

Die NMLW bepaal dat indien werkgewers nie die nasionale minimumloon kan bekostig nie, hulle aanlyn kan aansoek doen om kwytskelding (http://nmw.labour.gov.za). Indien kwytskelding toegestaan word, sal die werkgewer steeds minstens 90% van die nasionale minimumloon moet betaal. Kwytskelding is geldig vir ‘n periode van maksimum 12 maande.

As deel van die kwytskeldingsaansoek moet die werkgewer ‘n goeie rede vir die kwytskelding verskaf, asook bewys dat daar sinvol met werknemers en verteenwoordigende vakbond(e) gekonsulteer is waar van toepassing. Die regulasies bepaal verder dat so ‘n aansoek nie toegestaan sal word indien die werkgewer nie aan die bekostigbaarheidselemente ten opsigte van winsgewendheid, likiditeit en solvensie voldoen nie. Die berekeninge vir hierdie toetse word ingesluit as deel van die skedules tot die wet. Kwytskelding sal slegs oorweeg word indien die werkgewer op datum is met alle wetlike betalings, insluitend die Werkloosheidsversekeringsfonds, die Beroepsbeserings- en vergoedingsfonds (Vergoedingskommissaris) en enige ander toepaslike heffings.

Die uitkoms sal die datum van inwerkingtreding van kwytskelding bevestig, asook die tydperk waarvoor dit toegestaan word, die lone wat die werkgewer verplig is om te betaal en enige ander relevante voorwaardes. Indien kwytskelding toegestaan word, moet ‘n afskrif van die kwytskeldingsertifikaat in die werksplek vertoon word, asook aan die betrokke werknemers en verteenwoordigende vakbond(e) waar van toepassing verskaf word. Indien die aansoek onsuksesvol is, sal die werkgewer ‘n kennisgewing ontvang met die redes vir die weiering.

Hierdie artikel is bedoel om geag te word as algemene inligting en is nie bedoel om geag te word as regsadvies nie en werkgewers word aangeraai om ons te kontak om die korrekte minimum loon te bevestig wat op hul spesifieke bedryf van toepassing is, aangesien dit kan verskil van die nasionale minimum loon soos hierbo uiteengesit.

Kontak die LWO– vir enige advies of bystand!

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