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Table of contents
Basic Conditions of Employment Act……….......5

Purpose.....................................................................5

Regulation of Working Time...................................5

Leave........................................................................7

Particulars of Payment and Remuneration...............8

Termination of Employment....................................9

Activity…………………………………………...10

Labour Relations Act…………………………....12

Purpose....................................................................12

Primary Objectives..................................................12

Trade Unions...........................................................12

Collective Agreement..............................................14

Bargaining Council………………………………..15

Statutory Council.....................................................15

Strikes and Lockouts................................................16

Workplace Forums...................................................17

Dispute Resolution...................................................18

Unfair Dismissals………………………….............18

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Unfair Labour Practices...............................................19

Limits on Compensation..............................................29

Severance Pay..............................................................29

Transfer of contract of employment…………………30

Activity………………………………………………32

Employment Equity Act……………………………35

Purpose.........................................................................35

Unfair Discrimination...................................................35

Employment Equity Plan..............................................36

Harassment at the Workplace.......................................38

Affirmative Action........................................................39

Employment Equity Committee....................................40

Activity………………………………………………..42

Occupational Health and Safety Act………………..44

Purpose...........................................................................44

Dealing with Risks in the Workplace.............................45

Reporting an Incident.....................................................45

Safety Representatives....................................................45

Safety Committees..........................................................45

Activity…………………………………………............46
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Unemployment Insurance Act………………………...47

Purpose..............................................................................47

Right to Benefits................................................................47

Calculation of Benefits......................................................48

Unemployment Benefits....................................................49

Illness Benefits..................................................................50

Maternity Benefits……………………………………….51

Adoption Benefits..............................................................52

Dependants Benefits..........................................................53

General…………………………………………………...54

Activity…………………………………………………..56

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 Basic Conditions of Employment Act

Purpose
To advance economic development and social justice by fulfilling the primary objects of this
Act which are:
• To give effect to and regulate the right to fair labour This Act applies to all employees
practices conferred by section 23 of the Constitution;
and employers except:
• By establishing and enforcing basic conditions of
employment • Members of the State Security
• By regulating the variation of basic conditions of Agency
employment;
• To give effect to obligations incurred by the Republic as • Unpaid volunteers working for
a member state of the International Labour an organisation serving a
Organisation. charitable purpose.

Regulation of working time

Every employer must regulate the working time of each employee:
• In accordance with the provisions of any Act governing occupational health and
safety;
• With due regard to the health and safety of employees;
• With due regard to the family responsibilities of employees.

Ordinary hours of work Term:

An employer may not require or permit an employee to work
more than: “day” means a period of 24 hours
• 45 hours in any week; and measured from the time when the
• Nine hours in any day if the employee works for five
employee normally commences
days or fewer in a week; or
• Eight hours in any day if the employee works on more work, and “daily” has a
than five days in a week.
corresponding meaning.
Daily wage payment
• An employee or a worker as defined in section 1 of the
National Minimum Wage Act, 2018, who works for less than four hours on any
day must be paid for four hours work on that day.
• This section applies to employees or workers who earn less than the earnings
threshold set by the Minister (R 205 433. 50 p/a)

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Overtime
An employer may not require or permit an
employee to work:
• Overtime except in accordance with an
agreement;
• More than ten hours’ overtime a week.
• An employer must pay an employee at
least one and one-half times the
employee’s wage for overtime worked.
• Grant an employee at least 90 minutes’
paid time off for each hour of overtime
worked.

Compressed working week

• An agreement in writing may require or permit an employee to work up to twelve
hours in a day, inclusive of the meal intervals required, without receiving overtime
pay.
• An agreement in terms of subsection (1) may not require or permit an employee to
work;
o More than 45 ordinary hours of work in any week;
o More than ten hours’ overtime in any week; or
o On more than five days in any week.

Averaging of hours of work

• The ordinary hours of work and overtime of an employee may be averaged over a
period of up to four months in terms of a collective agreement.
• An employer may not require or permit an employee who is bound by a collective
agreement in terms of subsection (1) to work more than;
o An average of 45 ordinary hours of work in a week over the agreed period;
o An average of five hours’ overtime in a week over the agreed period.

Daily and weekly rest period

An employer must allow an employee:
• A daily rest period of at least twelve consecutive hours between ending and
recommencing work; and
• A weekly rest period of at least 36 consecutive hours, which, unless otherwise agreed,
must include Sunday.

Meal intervals
• An employer must give an employee who works continuously for more than five
hours a meal interval of at least one continuous hour.
• During a meal interval the employee may be required or permitted to perform only
duties that cannot be left unattended and cannot be performed by another employee.
• An employee must be remunerated:
o For a meal interval in which the employee is required to work or is required to
be available for work
o For any portion of a meal interval that is in excess of 75 minutes, unless the
employee lives on the premises at which the workplace is situated.

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 Did you know?
An employer must pay an employee who works on a Sunday at double
the employee’s wage for each hour worked, unless the employee
ordinarily works on a Sunday, in which case the employer must pay the
employee at one and one-half times the employee’s wage for each hour
worked.

Night work
In this section, “night work” means work performed after 18:00 and before 06:00 the
next day.
• An employer may only require or permit an employee to perform night work, if so
agreed, and if:
o The employee is compensated by the payment of an allowance, which may be a
shift allowance, or by a reduction of working hours; and
o Transportation is available between the employee’s place of residence and the
workplace at the commencement and conclusion of the employee’s shift.

Public holidays
• An employer may not require an employee to work on a public holiday except in
accordance with an agreement.
• If a public holiday falls on a day on which an employee would ordinarily work, an
employer must pay:
• An employee who does not work on the public holiday, at least the wage that the
employee would ordinarily have received for work on that day

Leave
Annual leave
“Annual leave cycle” means the period of 12 months’ Application of this Chapter
employment with the same employer immediately
following; This Chapter does not apply to an
• An employee’s commencement of employment; employee who works less than 24
or hours a month for an employer
• The completion of that employee’s prior leave
cycle.
• An employer must grant an employee at least:
o 21 consecutive days’ annual leave on full remuneration in
respect of each annual leave cycle; or
o By agreement, one day of annual leave on full remuneration for
every 17 days on which the employee worked or was entitled to be
paid

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Pay for annual leave
• An employer must pay an employee leave pay at least equivalent to the
remuneration that the employee would have received for working for a period equal to
the period of annual leave.

Maternity leave
• An employee is entitled to at least four consecutive months’ maternity leave.
• An employee may commence maternity leave:
o At any time from four weeks before the expected date of birth, unless
otherwise agreed; or
o On a date from which a medical practitioner or a
midwife certifies that it is necessary for the
employee’s health or that of her unborn child.
o No employee may work for six weeks after the birth
of her child, unless a medical practitioner or midwife
certifies that she is fit to do so.
o An employee who has a miscarriage during the third
trimester of pregnancy or bears a stillborn child is
entitled to maternity leave for six weeks after the
miscarriage or stillbirth, whether or not the employee
had commenced maternity leave at the time of the
miscarriage or stillbirth.

Parental leave
• An employee, who is a parent of a child, is entitled to at least ten consecutive day’s
parental leave.
• An employee may commence parental leave on:
o The day that the employee’s child is born; or
o The date that the adoption order is granted; or that a child is placed in the care
of a prospective adoptive parent by a competent court, pending the finalisation
of an adoption order in respect of that child

Adoption leave
• An employee, who is an adoptive parent of a child
who is below the age of two, is entitled to:
• Adoption leave of at least ten weeks consecutively; or
• The parental leave referred to above.
Did you know?
No employer may require or permit a
pregnant employee or an employee
who is nursing her child to perform
work that is hazardous to her health or
the health of her child.

Particulars of employment and renumeration

Payment of contributions to benefit funds

• A benefit fund is a pension, provident, retirement, medical aid or similar fund.
• An employer that deducts from an employee’s remuneration any amount for payment
to a benefit fund must pay the amount to the fund within seven days of the deduction
being made.

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 Calculation of remuneration and wages
• An employee’s wage is calculated by reference to the number of hours the employee
ordinarily works.
• For the purposes of calculating the wage of an employee by time, an employee is
deemed ordinarily to work:
o 45 hours in a week, unless the employee ordinarily works a lesser number of
hours in a week;
o Nine hours in a day, or seven and a half hours. In the case of an employee who
works for more than five days a week
• An employee’s monthly remuneration or wage is four and one third times the
employee’s weekly remuneration or wage, respectively.

Termination of employment Term

Severance pay “Operational requirements” means

requirements based on the economic,
• An employer must pay an employee who is dismissed technological, structural or similar
for reasons based on the employer’s operational needs of an employer.
requirements or whose contract of employment
terminates or is terminated;
• Severance pay equal to at least one week’s
remuneration for each completed year of continuous service with that employer,
calculated in accordance with “Calculation of remuneration and wages”.
• An employee who unreasonably refuses to accept the employer’s offer of
alternative employment with that employer or any other employer, is not entitled
to severance pay.
• The payment of severance pay in compliance with this section does not affect an
employee’s right to any other amount payable according to law.
• If there is a dispute only about the entitlement to severance pay in terms of this
section, the employee may refer the dispute in writing to;
o a council, if the parties to the dispute fall within the registered scope of
that council; or the CCMA, if no council has jurisdiction

Did You Know?

Instead of giving an employee notice,
an employer may pay the employee
the remuneration the employee would
have received, calculated in
accordance with “Calculation of
remuneration and wages”, if the
employee had worked during the
notice period.

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 Activity

Questions:

1. What is the maximum hours of work an employer can permit and employee to work
in a 5 day week?
___________________________________________________________________
2. What is the maximum overtime hours an employee can work in a week?
____________________________________________________________________
3. Can an employee work 12 hours including meal intervals in a day?
___________________________________________________________________
4. What is the daily rest period between ending and recommencing work?
___________________________________________________________________
5. What provision should be made if an employee works in their meal interval?
___________________________________________________________________
6. What period of time constitutes “night work”?
___________________________________________________________________

Please circle true or false

7. An employee, who is a parent of a child, is entitled to True False
at least 15 consecutive day’s parental leave.

8. An employer must grant an employee at least 21 True False

consecutive days’ annual leave on full remuneration
in respect of each annual leave cycle

9. An employee may only commence parental leave on True False

the day that the employee’s child is born

10. An employee who unreasonably refuses to accept the True False

employer’s offer of alternative employment with that
employer or any other employer, is not entitled to
severance pay

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11
Answer key
1. 45 hours
2. 10 hours
3. Yes, upon written agreement.
Refer to Compressed workweek.
4. 12 hours
5. Remuneration for that duration,
calculation of remuneration and
wages.
6. 18:00 – 06:00
7. False
8. True
9. False
10. True
 Labour relations Act

Purpose
The Labour Relations Act aims to promote economic development, social justice, labour
peace and democracy in the workplace.
Primary objectives
• To regulate the fundamental rights conferred by section Who is excluded from this act?
27 of the Constitution
• To provide a framework within which employees and • National Defence Force
their trade unions, employers and employers’ • National Intelligence Agency
organisations can: collectively bargain, and form and • South African Secret Service.
join trade unions
• To promote orderly collective bargaining, collective
bargaining at sectoral level, employee participation in decision-making in the
workplace, and the effective resolution of labour disputes.

Trade Unions
Freedom of association
• Every employee has the right to form or join a trade union or a employers’
organisation
• Every member of a trade union or a employers’ organisation has the right to:
o Participate in its lawful activities;
o To participate in the election of any of its office-bearers, officials or trade
union representatives
o To stand for election and be eligible for appointment as an office bearer

What is a trade union? Did you know?

Trade unions are independent No person may discriminate against an
organisations that represent employee in a trade union and employers’
workers to their employers. If you organisation
join a trade union, you are joining
No person may require an employee to not be a
a group that will negotiate
member of a trade union or employers’
workplace issues such as salary,
organisation or to give up membership
hours of work, and other
conditions, on your behalf.

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Rights of trade unions and employer’s organisations
Every trade union and employer’s organisation have the right to:
• Determine its own constitution and rules
• To hold elections for its office-bearers
• To plan and organise its administration and lawful activities
• To participate in joining or forming a federation of trade unions or a federation of
employers’ organisations
• To affiliate with, and participate in the affairs of, any international workers’
organisation or the International Labour Organisation

Procedure of disputes
If there is a dispute any party may refer the dispute in writing to:
• A council, if the parties to the dispute fall within the registered scope of that council
the Commission, if no council has jurisdiction.
• The council or the Commission must attempt to resolve the dispute through
conciliation.
• If the dispute remains unresolved, any party to the dispute may refer it to the Labour
Court for adjudication.
Trade union access to workplace
• A representative trade union is entitled to hold meetings with employees outside their
working hours at the employer’s premises.
• The members of a representative trade union are entitled to vote at the employer’s
premises in any election or ballot contemplated by that trade union’s constitution.

How many representatives should a trade union have?

• 10 members: one trade union representative
• 50 members: two trade union representatives, plus one for every 50 additional
members
• 300 members: seven trade union representatives, plus one for every 100 additional
members
• 600 members: ten trade union representatives, plus one for every 200 additional
members
• 1000 members: twelve trade union representatives, plus one for every 500 additional
members up to a maximum of 20 trade union representatives

Note:
Representative trade union is a registered trade union
or two or more registered trade unions acting jointly

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 Trade union representatives’ rights
A trade union representative has the right to perform the following functions:
• To assist and represent the employee in grievance and disciplinary proceedings
• To monitor the employer’s compliance with the workplace related provisions of this
Act
• Subject to reasonable conditions, a trade union representative is entitled to take
reasonable time off with pay during working hours to perform the functions of a trade
union representative, and to be trained in any subject relevant to the performance of
the functions of a trade union representative.

Disclosure of information Did you know?

• An employer must disclose to a trade union The domestic sector (the employment of
representative all relevant information that will employees engaged in domestic work in their
allow the trade union representative to perform employers’ homes are subject to the following
limitations:
effectively the functions referred to in section
• An employer is not required to disclose • Official of a representative trade union
information: does not include the right to enter the
o That is legally privileged home of the employer, unless the
o That the employer cannot disclose employer agrees
without contravening a prohibition • The right to the disclosure of information
imposed on the employer by any law or does not apply
order of any court
o That is confidential and, if disclosed,
may cause substantial harm to an employee or the employer
o That is private personal information relating to an employee, unless
that employee consents to the disclosure of that information.
Disputes about organisational rights

Commission Arbitration
The Commission must attempt to resolve the If the dispute remains unresolved, any party to
dispute through conciliation. the dispute may request that the dispute be
resolved through arbitration as soon as may be
practicable.

Collective agreement
• This is a simple agreement between employers a union or unions. The agreement only
affects these two parties
• If there is a dispute about the interpretation or application of a collective agreement,
any party may refer the dispute in writing to the Commission if:
o The collective agreement does not provide for a procedure as required
o The procedure provided for in the collective agreement is not operative
o any party to the collective agreement has frustrated the resolution of the
dispute in terms of the collective agreement.

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 • The Commission must attempt to resolve the dispute through conciliation.
• If the dispute remains unresolved, any party to the dispute may request that the
dispute be resolved through arbitration.
Bargaining council
What is it
• Bargaining council
agreements cover a wide
range of issues (e.g. wages,
benefits and grievance
procedures)
• One or more registered trade
unions and one or more
registered employers’
organisations may establish a
bargaining council for a
sector and area by adopting
the constitution of bargaining
council and register the
bargaining council
Statutory council
What is it
• This council is used when no
bargaining council exists
• Same as bargaining council
except it cannot be extended
to parties outside of the
council without the Minister
of Labour’s approval
Power and functions
• To conclude and enforce
collective agreements
• To prevent and resolve labour
disputes
• To perform the dispute
resolution functions
• To establish and administer a
fund to be used for resolving
disputes
• To promote and establish
training, education schemes,
pension, provident, medical
aid, sick pay, holiday,
unemployment and training
schemes
• To develop proposals for
submission to NEDLAC or any
other appropriate forum
• To provide industrial support
services within the sector
Power and functions
• To perform the dispute
resolution functions
• To promote and establish
training and education schemes
• To establish and administer
pension, provident, medical
aid, sick pay, holiday,
unemployment schemes
or funds
• To conclude collective
agreements
Registration
The parties may apply for
registration
of a bargaining council by
submitting to the registrar:
• The prescribed form that has
been properly completed
• A copy of its constitution
• Any other information that
may assist the registrar to
determine whether the
bargaining council meets the
requirements for registration.
• To establish a bargaining
council there must be
enough representation in
both the unions and the
employers’ organisations.
Representation must be
acceptable to NEDLAC
Registration
• A representative trade union
or employers’ organisation
may apply to the registrar in
the prescribed form for the
establishment of a statutory
council in a sector and area
in respect of which no
council is registered.
• To establish a statutory
council, there must be 30%
representation on both sides.
This means that at least 30%
of the employers in the
sector must employ at least
30% of the workers.
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Effect of registration of council
• Certificate of registration is sufficient proof that a registered council is a body
corporate.
• A council has all the powers, functions and duties within its registered scope.
• A party of a council is not personally liable for any loss suffered by any person
Dispute resolution functions of council
• The parties to a council (members of a registered trade union) must attempt to
resolve any dispute between themselves in accordance with the constitution of the
council.
• The council must attempt to resolve the dispute through conciliation; and if the
dispute remains unresolved after conciliation, the council must arbitrate the dispute
• If one or more of the parties to a dispute that has been referred to the council do not
fall within the registered scope of that council, it must refer the dispute to the
Commission.

Strikes and lockouts:

The Labour Relations Act grants employees the right to strike, it also Strikes and lockouts occur
grants employers recourse to lock out employees. due to:
• Strikes can be either protected or unprotected. • Wage increases
• If a trade union wants to embark on a protected strike, then • Demands for
certain requirements must be met, one of the most important organisational rights
requirements is that the trade union must give the employer at • Demands to join a
least 48 hours’ notice of its intention to embark on a strike bargaining council
action. • Demands to establish a
bargaining council
• Once a strike is protected employees may not be dismissed for
going on strike, they may not get a court interdict to stop the
strike, employees do not commit breach of contract by going
on strike and employers may not institute civil proceedings against employees on
strike.

The Labour Relations Act affords every worker the right to strike, and
every employer the right to lock workers out, if:

• Referred to a council or the Commission for Conciliation, Mediation

and Arbitration (CCMA);
• There is a certificate stating that the dispute remains unresolved has
been issued
• 30 days have elapsed since the referral
• 48 hours’ written notice of a strike was given to: the employer; or a
council; or an employer organisation
• 48 hours’ written notice of a lockout is given to the trade union; or the
workers; or a council

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What is a lock-out?

Lock-out takes place in response to a strike or to force the employees to accept a demand of
the employer. A strike or lock-out is considered protected if lawful procedure was followed

Failure to resolve a dispute in the workplace

Step 1: Conciliation - the dispute must be referred to the Council for Conciliation, Mediation and
Arbitration (“CCMA”) or Bargaining Council for resolution

Step 2: Certificate of outcome - if the dispute remains unresolved

or a 30-day period has expired since it has been referred to the CCMA a certificate of outcome must be
obtained.

Step 3: Notice of Commencement- at least 48 hours prior to the strike or lock-out a written notice of
the commencement must be given

Workplace forums
• A workplace forum has the right to be consulted by the employer on restructuring and
new work methods, retrenching workers, job grading, criteria for merits and bonuses,
education and training, health and safety measures.
• Unless otherwise agreed in a collective agreement, an employer must consult the
workplace forum before applying disciplinary codes and procedures, workplace rules
of conduct, measures to monitor unfair discrimination, changes to rules of social benefit
schemes.
• An employer must provide all the information that will allow a workplace forum to
consult and make joint decisions effectively.
• An employer may not provide information that: is legally privileged, violates any law
or court order, may harm a worker or the employer, is personal to a worker, unless the
worker allows it.

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Dispute resolution
• The Labour Relations Act promotes private procedures negotiated between parties for
the resolution of disputes.
• It establishes an independent body, the Commission for Conciliation, Mediation and
Arbitration (CCMA), which will actively seek to resolve disputes through conciliation
and arbitration.
• It also establishes new courts, namely the Labour and Labour Appeal court, which are
the only courts which can hear and decide labour disputes and which have more
authority and power than the previous courts.

The Procedure:

Unfair dismissal and unfair labour practice An Employer may dismiss an

employee when:
For a dismissal to be valid:
• The employee is guilty of
• It must be fair both in terms of substance and procedure. misconduct
• The dismissal must be for a substantive reason such as • Or incapacity and operational
breaking a rule of conduct in the workplace where the reasons (retrenchment)
rule was valid and reasonable • Dismissal must however be
• The employee knew about the rule the last resort for an employer.
• The employer applied the rule consistently
• Dismissal is the appropriate step to take against the
employee.
• Even if there are very good substantive reasons for a dismissal, an employer must
follow a fair procedure before dismissing the employee. This requires the employer to
investigate the alleged misconduct.

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 • The employer must inform the employee of the investigation, the union should be
consulted before the inquiry commences, the employee should be given adequate time
to prepare his or her response to allegations levelled against him or her and the
employee has the right to be assisted by other employees.
• An employee who feels that he or she has been unfairly dismissed, can lodge a
complaint with the Commission on Conciliation, Mediation and Arbitration (CCMA).
If a dispute remains unresolved, the employee may refer it to arbitration where it
concerns misconduct or incapacity, or to the Labour Court where it concerns
retrenchment.
• The employee must prove the dismissal and then the onus shifts to the employer to
prove that the dismissal was for a fair reason.
• The Commission or Labour court can either order reinstatement of the employee, pay
from the date of dismissal until the last day of the court or arbitration proceedings if the
dismissal is only procedurally unfair, up to two years’ wages for automatically unfair
dismissals and a maximum of one years’ wages if the unfair dismissal is for misconduct,
incapacity and retrenchments.

Unfair labour practice

Right not to be unfairly dismissed or subjected to unfair labour practice:
• When an employer wants to dismiss a worker, they need Note:
to give the employee notice
Every employee has the right
• The worker must get wages for the time he or she
not to be unfairly dismissed and
worked, plus any leave pay. Or give the worker notice
subjected to unfair labour
pay (this is also called payment in lieu of notice). practice
• The notice pay must be for as long as the notice time
required, for example 1 week's pay instead of 1 weeks’
notice.
o The payment must include the value of payment in kind.
o The worker must get wages for the hours worked, plus any leave
pay, plus payment in lieu of notice, or payment for accommodation
(30% of basic wage).
• If an employer retrenched the worker:
o The employer must pay the worker severance pay of at least 1 week's
remuneration for every full year that the worker worked for the employer.
o The worker must get wages for the hours worked, plus any leave pay, plus
notice or payment in lieu of notice, plus severance pay.
The following reasons for dismissal are invalid. The dismissal will be regarded as
automatically unfair if the worker is dismissed for:
• Exercising any of the rights given by this Act or participating in proceedings in terms
of the Act.
• Taking part in lawful union activities
• Taking part in a legal strike or other industrial action or protest action
• Refusing to do the work of someone who was on strike

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 • Being pregnant, or any reason related to pregnancy
• Refusing to accept a change in working conditions
• Reasons that are due to arbitrary discrimination (except that an employer may retire
someone who has reached the normal or agreed retirement age, or if the reason is based
on an inherent requirement of the job, for example being able to speak a certain
language in order to do the job properly)
When is a dismissal fair?
The 'fairness' of dismissal is decided in two ways:

1. Substantive fairness (was there a 'fair' reason to
dismiss the worker? was dismissal appropriate under
the circumstances?). The employer must have a
proper and fair reason for dismissing the worker.
A 'fair' reason can be one of these:
• Misconduct (the worker has done something
seriously wrong and can be blamed for the
misconduct.)
• Incapacity (the worker does not do the job
properly, or the worker is unable to do the job
due to illness or disability)
• Retrenchment or redundancy (the employer is
cutting down on staff or restructuring the work
and work of a particular kind has changed)
• Even if the worker is at fault, the employer must
still pay the right wages, leave pay and notice
pay.
2. Procedural fairness (was there a fair
procedure before the worker was
dismissed?)
The worker must always have a fair hearing
before being dismissed. In other words:
• The worker must always get a chance to
give his or her side of the story before
the employer decides on dismissal
• Other aspects of a fair procedure are
explained below under the different
reasons for dismissal
• The worker can refer the proposed
dismissal to the CCMA for conciliation
.

Dismissal for Misconduct

Employers are encouraged to adopt clear rules of
conduct that are known to all workers. Some rules may
be so well established or obvious that everyone can be
expected to know them, for example that violence at
work is not acceptable.
Dismissals for misconduct will only be fair if:
• The worker broke a rule of conduct in the
workplace
• The rule was reasonable and necessary
Did you know?
Before deciding to dismiss the worker for
misconduct, the employer must consider:
• The worker's circumstances (for
example length of service, previous
disciplinary record, personal
circumstances)
• The nature of the job
• The circumstances in which the
misconduct took place

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 • The worker knew of the rule or should have known of the rule
• The employer applied the rule consistently (there are no other workers who have been
allowed to get away with this misconduct)
o It is appropriate to dismiss the worker for this reason, rather than taking
disciplinary action or imposing a lesser penalty such as a final warning
• For minor mistakes the employer must use informal advice.
o Corrective or progressive discipline must be used for misconduct.
o The aim of corrective discipline is to correct the worker and help him or her
overcome the problem.
o Progressive discipline can get stronger every time the worker repeats the
misconduct.
• Workers should not be dismissed for a first offence, unless it is very serious, such as
gross insubordination or dishonesty, intentional damage to the employer's property,
putting others' safety at risk, or physical assault of a co-worker.
• Workers can be dismissed for misconduct if they go on strike without following the
procedures.
Fair procedure
Employers must keep records for each worker, which say what offences a worker committed,
what disciplinary action was taken, and why the action was taken. If there is repeated
misconduct, the employer must give the worker warnings. A final warning for repeated
misconduct or serious misconduct must be given in writing.
There must be a fair hearing:
• The worker must know in advance what the charges are against him or her.
• The worker must be given enough time to prepare for a hearing.
• The worker must be present at the hearing and be allowed to state his or her case.
• The worker must be allowed to see documents and cross-examine evidence used
against him or her.
• The employer should bring all witnesses against the worker to the hearing. The
worker should have a chance to cross-examine witnesses called against him or her.
• The worker should be allowed to call
witnesses Did you know?
• The worker must be given reasons for any
decisions taken. When deciding whether a dismissal for
incapacity was fair or not, the following must be
Dismissal for incapacity considered:

A dismissal for incapacity can be for:
• Poor work performance
• Physical disability or ill health
• Incompatibility
• Whether the worker failed to work to a
required standard
• Whether the worker was aware of the
standard
• Whether the worker was given a fair chance
to meet the standard
• Whether dismissal is the right punishment
for failing to meet the standard

21
Dismissals for poor performance will only be fair if the employer:
• Has given the worker proper training, instructions, evaluation, guidance and advice
• Assessed the worker's performance over a reasonable period of time
• Investigated the reasons for continued poor performance
• Investigated ways of solving the problem without resorting to dismissal
• Gave the worker a chance to be heard before deciding to dismiss

Dismissals for (temporary/permanent) ill health or disability will only be fair if the
employer:
• Investigated the degree and duration of the injury or incapacity
• Considered ways of avoiding dismissal, for example getting a temporary worker until
the sick worker is better
• Tried to find alternative work for the worker to do
• Tried to adapt the work so that the worker could still do it
• Gave the worker a chance to be heard before deciding to dismiss
• How badly ill or disabled the worker is (degree of incapacity) and for how long he or
she is likely to remain ill or disabled (duration of incapacity), as well as the reason for
the incapacity will be considered when deciding whether the dismissal is fair or not.
Retrenchment or redundancy dismissal
• An employer is allowed to retrench workers for 'operational requirements' based on
the employer's 'economic, technological, structural or similar needs'.
When an employer considers retrenchment, he or she must consult:
• Whoever a collective agreement says must be consulted, or if none exists:
• The workplace forum, or if none exists:
• The union, or if none exists the workers themselves
The employer must issue a written notice inviting the other party to consult with it and
make all the relevant information available in writing at the consultations, including:
• Reasons for retrenchment
• Alternatives considered including redeployment
• Number of workers to be retrenched
• How it will be decided which workers to retrench
• When the dismissals will take place
• Severance pay
• What other help the employer will give to the workers who will be retrenched
• Possibilities of future re-employment for these workers
• Number of workers employed by the employer
• Number of workers the employer has retrenched during the past 12 months’

22
 • The people the employer is consulting with must be allowed to have their say and
make suggestions on any of these issues. If the employer rejects what they say, he or
she must give reasons in writing if the workers have submitted their representations in
writing.
The consultation process is a ‘joint consensus seeking’ process. In other words, the
parties try and reach an agreement on the different issues, such as:
• Whether retrenchment is justified and ways to avoid retrenchments
• Ways to reduce the number of people
retrenched Did you know?
• Ways to limit the harsh effects of
retrenchment If workers and the employer cannot agree,
disputes over retrenchments and severance pay
• The method and criteria for selecting
can be referred to the CCMA. Section 189A of
workers to be retrenched: if there is no the Labour Relations Act, has special provisions
agreement, the employer must use fair and for retrenchments in companies that employ
objective criteria more than fifty employees. The provisions can
• Severance pay: workers can negotiate for be used by parties, if both agree to this, to help
higher severance pay than the Labour them reach an agreement. The provisions allow
Relations Act prescribes (which is 1 week's for an outside facilitator to help facilitate the
pay for every year of service) process and the right to strike over
retrenchments as a final resort.

What steps can be taken if there is an unfair

dismissal?
• If a worker thinks that the dismissal was unfair, in other words that the employer
didn't follow fair procedures or there is not a 'good reason' for the dismissal, then the
worker can try to challenge the dismissal.
• If a dismissal is found to be unfair, the worker will be able to be reinstated or re-
employed, or get compensation money.
The worker is likely to get compensation if:
Did you know?
• The worker does not want the job back
• The circumstances surrounding the The worker can get up to 12 months' wages as
dismissal would make the relationship compensation for an unfair dismissal
between worker and employer intolerable (procedural or substantive unfairness).
• It is not reasonably practical for the Compensation for an unfair labour practice
employer to take the worker back claim is limited to 12 months remuneration. If it
was an automatically unfair dismissal the
• The dismissal is unfair merely because the worker could get up to 24 months' wages as
employer failed to comply with a fair compensation.
procedure, but there was a good reason for
dismissal

23
Agreement for pre-dismissal arbitration
An employer may, with the consent of the employee, request a council, an accredited agency
or the Commission to conduct an arbitration into allegations about the conduct or capacity of
that employee. This request must be in the prescribed form.
• The council, accredited agency or the Commission must appoint an arbitrator on
receipt of
- Payment by the employer of the prescribed fee
- The employee’s written consent to the inquiry.
✓ An employee may only consent to a pre-dismissal arbitration after the employee has been
advised of the allegation referred to in subsection (1) and in respect of a specific
arbitration.
✓ An employee earning more than the amount determined by the Minister in terms of
section 6(3) of the Basic Conditions of Employment Act, may consent to the holding of a
pre-dismissal arbitration in a contract of employment.

In any arbitration in terms of this section a party to the dispute may appear in person or be
represented ONLY by:

• A co-employee

• A director or employee, if the party is a juristic person

• Any member, officer bearer or official of that party’s registered trade union or registered
employers’ organisation; or

• A legal practitioner, or agreement between the parties.

Dismissals based on operational requirements

When an employer contemplates dismissing one or more employees for reasons based
on the employer's operational requirements, the employer must consult either:
• Any person whom the employer is required to consult in terms of a collective
agreement
• A workplace forum, if the employees likely to be affected by the proposed dismissals
are employed in a workplace in respect of which there is a workplace forum; and any
registered trade union whose members are likely to be affected by the proposed
dismissals

24
 • Any registered trade union whose members are likely to be affected by the proposed
dismissals; or
• The employees likely to be affected by the proposed dismissals or their
representatives nominated for that purpose.
The employer and the other consulting parties must engage in a meaningful joint
consensus-seeking process and attempt to reach consensus on:
• The appropriate measures
o To avoid the dismissals
o To minimise the number of dismissals
o To change the timing of the dismissals
o To mitigate the adverse effects of the dismissals
• The method for selecting the employees to be dismissed
• The severance-pay for dismissed employees
The employer must issue a written notice inviting the other consulting party to consult
with it and disclose in writing all relevant information, including, but not limited to:
• The reasons for the proposed dismissals;
• The alternatives that the employer considered before proposing the dismissals, and the
reasons for rejecting each of those alternatives;
• The number of employees likely to be affected and the job categories in which they
are employed;
• The proposed method for selecting which employees to dismiss;
• The time when, or the period during which, the dismissals are likely to take effect
• The severance-pay proposed
• Any assistance that the employer proposes to offer to the employees likely to be
dismissed
• The possibility of the future re-employment of the employees who are dismissed
• The number of employees employed by the employer
• The number of employees that the employer has dismissed for reasons based on its
operation requirements in the preceding 12 months.

25
 Further things to note as An Employer

• In any dispute in which in which an arbitrator or the Labour Court is required to

decide whether or not any information is relevant, the onus is on the employer to
prove that any information that it has refused to disclose is not relevant for the
purposes for which it is sought.
• The employer must allow the other consulting party an opportunity during
consultation to make representations about any other matter relating to the proposed
dismissals.
• The employer must consider and respond to the representations made by the other
consulting party and, if the employer does not agree with them, the employer must
state the reasons for disagreeing.
• If any representation is made in writing, the employer must respond in writing.
• The employer must select the employees to be dismissed according to selection
criteria that have been agreed to by the consulting parties; or if no criteria have been
agreed, criteria that are fair and objective.

Dismissals based on operational requirements by employers with more than 50

employees
In respect of any dismissal covered by this
section:
• An employer must give notice of
termination of employment in
accordance with the provisions of
this section:
• An employee may participate in a
strike and an employer may lock out
in accordance with the provisions of
this section
• The consulting parties may agree to
vary the time periods for facilitation
or consultation
This section applies to employers employing more than
50 employees if the employer contemplates dismissing
by reason of the employer’s operational requirements, at:
• Least –10 employees, if the employer employs up to
200 employees
• 20 employees, if the employer employs more than
200, but not more than 300 employees
• 30 employees, if the employer employs more than
300, but not more than 400 employees
• 40 employees, if the employer employs more than
400, but not more than 500 employees
• 50 employees if the employer employs more than
500 employees

26
If a facilitator is appointed and 60 days have elapsed from the date on which notice was
given:
• The employer may give notice to terminate the contracts of employment in
accordance with section 37(1) of the Basic Conditions of Employment Act; and a
registered trade union or the employees who have received notice of termination may
either:
o Give notice of a strike
• Refer a dispute concerning whether there is a fair reason for the dismissal to the
Labour Court
If a facilitator is not appointed:
• A party may not refer a dispute to a council or the Commission unless a period of 30
days has lapsed from the date on which notice was given
• The employer may give notice to terminate the contracts of employment in
accordance with section 37(1) of the Basic Conditions of Employment Act
• A registered trade union or the employees who have received notice of termination
may:
o Give notice of a strike in terms of section
o Refer a dispute concerning whether there is a fair reason for the dismissal to
the labour court
If a trade union gives notice of a strike in terms of this section:
• No member of that trade union and no employee, to whom a collective agreement
concluded by that trade union may refer a dispute concerning whether there is a fair
reason for dismissal to the Labour Court
If an employer does not comply with a fair procedure, a consulting party may approach the
Labour Court by way of an application for an order:
• Compelling the employer to comply with a fair procedure
• Interdicting or restraining the employer from dismissing an employee prior to
complying with a fair procedure;
• Directing the employer to reinstate an employee Did you know?
until it has complied with a fair procedure A referral must be made within:
• Make an award of compensation, if an order is
not appropriate • 30 days of the date of a dismissal or,
if it is a later date, within 30 days of
the employer making a final decision
Disputes about unfair dismissals an unfair labour to dismiss or uphold the dismissal;
practices
• 90 days of the date of the act or
If there is a dispute about the fairness of a omission which allegedly constitutes
dismissal or a dispute about an unfair labour the unfair labour practice or, if it is a
practice, the dismissed employee or the employee later date, within 90 days of the date
on which the employee became
alleging the unfair labour practice may refer the
aware of the act or occurrence.
dispute in writing within to:

27
 • A council, if the parties to the dispute fall within the registered scope of that council
• The commission, if no council has jurisdiction

If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days
have expired since the council or the Commission received the referral and the dispute
remains unresolved:
• The council or the Commission must arbitrate the dispute at the request of the
employee if the employee has alleged that the reason for dismissal related to the
employee's conduct or capacity
• The employee has alleged that the reason for dismissal is that the employer made
continued employment intolerable or the employer provided the employee with
substantially less favourable conditions or circumstances at work
• The employee does not know the reason for dismissal; or
• The dispute concerns an unfair labour practice

Alternatively, the employee may refer the dispute to the Labour Court for adjudication if the
employee has alleged that the reason for dismissal is:
• Automatically unfair
• Based on the employer's operational
Did you know?
requirements
• The employee's participation in a If an employee is dismissed by reason of the employer’s
strike that does not comply with the operational requirements following a consultation
provisions of the strikes and lockout procedure that applied to that employee only, the
employee may elect to refer the dispute either to
section
arbitration or to the Labour Court.
• Because the employee refused to
join, was refused membership of or
was expelled from a trade union
party to a closed shop agreement.

Remedies for unfair dismissal and unfair labour practice

If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is
unfair, the Court or the arbitrator may:
• Order the employer to reinstate the employee from any date not earlier than the date
of dismissal
• Order the employer to re-employ the employee, either in the work in which the
employee was employed before the dismissal or in other reasonably suitable work on
any terms and from any date not earlier than the date of dismissal
• Order the employer to pay compensation to the employee

28
The Labour Court or the arbitrator must require the employer to reinstate or re-
employ the employee unless:
• The employee does not wish to be reinstated or re- Note:
employed If a dismissal is automatically
• The circumstances surrounding the dismissal are such unfair or, if a dismissal based on
that a continued employment relationship would be the employer's operational
intolerable requirements is found to be unfair,
• It is not reasonably practicable for the employer to the Labour Court in addition may
reinstate or re-employ the employee; or make any other order that it
• The dismissal is unfair only because the employer did considers appropriate in the
circumstances.
not follow a fair procedure

Limits on compensation
• The compensation awarded to an employee whose dismissal is found to be
unfair either because:
o The employer did not prove that the reason for dismissal was a fair reason
relating to the employee’s conduct or capacity or;
o The employer’s operational requirements or;
NB:
o The employer did not follow a fair procedure
• The compensation awarded to an employee whose An order or award of compensation
dismissal is automatically unfair must be just and made in terms of this Chapter is in
equitable in all the circumstances, but not more than addition to, and not a substitute for,
the equivalent of 24 months' remuneration calculated any other amount to which the
at the employee's rate of remuneration on the date of employee is entitled in terms of
any law, collective agreement or
dismissal.
contract of employment.
• The compensation awarded to an employee in respect
of an unfair labour practice must be just and equitable
in all the circumstances, but not more than the
equivalent of 12 months’ remuneration.

Severance-Pay
• An employer must pay an employee who dismissed for reasons based on the employer's
operational requirements severance pay equal to at least one week's remuneration for each
completed year of continuous service with that employer, unless the employer has been
exempted from the provisions of this subsection.
• The Minister, after consulting NEDLAC and the Public Service Co-ordinating Bargaining
Council, may vary the amount of severance pay by notice in the Government Gazette.
• An employee who unreasonably refuses to accept the employer's offer of alternative
employment with that employer or any other employer is not entitled to severance pay
• The payment of severance pay in compliance with this section does not affect an

29
If there is a dispute only about the entitlement to severance pay in terms of this section,
the employee may refer the dispute in writing to:
• A council, if the parties to the dispute fall within the registered scope of that council;
or
• The commission, if no council has jurisdiction

✓ The council or the Commission must attempt to resolve the

dispute through conciliation, and if the dispute remains
unresolved, the employee may refer it to arbitration.
✓ If the Labour Court is adjudicating a dispute about a dismissal based on the
employer's operational requirements, the Court may inquire into and determine the
amount of any severance pay to which the dismissed employee may be entitled, and
the Court may make an order directing the employer to pay that amount.

Transfer of contract of employment

If a transfer of a business takes place, unless otherwise agreed:
• The new employer is automatically substituted in the place of the old employer in
respect of all contracts of employment in existence immediately before the date of
transfer
• All the rights and obligations between the old employer and an employee at the time
of the transfer continue in force as if they had been rights and obligations between the
new employer and the employee
• Anything done before the transfer by or in relation to the old employer, including the
dismissal of an employee or the commission of an unfair labour practice or act of
unfair discrimination, is considered to have been done by or in relation to the new
employer
• The transfer does not interrupt an employee’s continuity of employment, and an
employee’s contract of employment continues with the new employer as if with the
old employer.
The old employer must:
1. Agree with the new employer to a valuation as at the date of transfer of:
• The leave-pay accrued to the transferred employees of the old employer
• The severance pay that would have been payable to the transferred employees
of the old employer in the event of a dismissal by reason of the employer’s
operational requirements
• Any other payments that have accrued to the transferred employees but have
not been paid to employees of the old employer.

30
2. Conclude a written agreement that specifies:
• Which employer is liable for paying any amount Key terms:
and in the case of the apportionment of liability
between them • ‘Business’ includes the whole
or a part of any business, trade,
• What provision has been made for any payment
undertaking or service.
contemplated if any employee becomes entitled
• ‘transfer’ means the transfer
to receive a payment of a business by one employer
3. Disclose the terms of the agreement to each employee (‘the old employer’) to another
who after the transfer becomes employed by the new employer (‘the new employer’)
employer as a going concern.
4. Take any other measure that may be reasonable in the
circumstances to ensure that adequate provision is made
for any obligation on the new employer that may arise

31
 Activity

Please circle true or false

1. Every trade union and employer’s organisation have the right True False
to:
• Determine its own constitution and rules
• To hold elections for its office-bearers
• To affiliate with, and participate in the affairs of, any
South African worker

2. Trade Unions must have twelve trade union representatives for True False
1000 members

3. A statuary council can be used when a bargaining council True False

exists

4. Bargaining counsels involves: True False

• Concluding and enforcing collective agreements
• Preventing and resolving labour disputes
• Performing the dispute resolution functions

5. A referral must be made within 14 days of the date of a True False

dismissal or, if it is a later date, within 14 days of the
employer making a final decision to dismiss or uphold the
dismissal

6. The Labour Court or the arbitrator must require the employer True False
to reinstate or re-employ the employee unless one of the
reasons is that the employee does not wish to be reinstated or
re-employed

7. The compensation awarded to an employee whose dismissal is True False

fair must be just and equitable in all the circumstances, but not
more than the equivalent of 12 months' remuneration
calculated at the employee's rate of remuneration on the date
of dismissal.

32
8. In an arbitration, a party may be represented by an employee, True False
trade union, lawyer or themselves.

9. An employee who unreasonably refuses to accept the True False

employer's offer of alternative employment with that employer
or any other employer is not entitled to severance pay

10. In any dispute in which an arbitrator or the Labour Court is True False
required to decide whether or not any information is relevant,
the onus is on the employee to prove that any information that
it has refused to disclose is not relevant for the purposes for
which it is sought

11. If an employer does not comply with a fair procedure, a True False
consulting party may approach the Labour Court by way of an
application for an order directing the employer to reinstate an
employee until it has complied with a fair procedure

12. If the Labour Court or an arbitrator appointed in terms of this True False
Act finds that a dismissal is unfair, the Court or the arbitrator
may order the employer to cease from paying compensation to
the employee and order the employer to reinstate the employee
from any date not earlier than the date of dismissal

13. Anything done before the transfer by or in relation to the old True False
employer, including the dismissal of an employee or the
commission of an unfair labour practice or act of unfair
discrimination, is considered to have been done by or in
relation to the new employer

14. An employee may participate in a strike on condition that the True False
employer may not lock out in accordance with the provisions
of the LRA

33
Please circle the most correct answer
15. A dismissal may be procedurally unfair if:
a. The employer refuses the employee permission to have legal representation
b. The employer gives the employee a reasonable opportunity to make representations
why he/she should not be dismissed, and the employee declines the opportunity
c. The employee goes against appropriate decision making

16. Some of the reasons strikes occur is due to:

a. Wage issues
b. Declining legal representatives for employees
c. Both A & B

17. Disputes are usually reported to which council:

a. CCMA
b. Labour appeal court
c. SAPS

A 17.
C 16.
A 15.
False 14.
True 13.
False 12.
True 11.
False 10.
True 9.
True 8.
False 7.
False 6.
True 5.
True 4.
False 3.
True 2.
False 1.

Answer key

34
 Employment Equity Act

Purpose
● To achieve equity in the workplace
● To eliminate unfair discrimination
● To implement affirmative action measures
● To ensure that, in time, the racial and gender composition of the Employees at a
workplace reflects the national and regional demographics of South Africa
● To reduce income differentials

Terms:
Note:
"black people" is a generic term which means Africans,
The term “women” under the
Coloureds and Indians;
definition of “designated groups”
"designated Employer" means- an Employer who: employs 50 includes both white and black
or more Employees; an Employer whose total annual turnover is women.
at least equal to the amount set out in schedule.

"people with disabilities" means people who have a long-term

or recurring physical or mental impairment which substantially
limits their prospects of entry into, or advancement in,
employment.

Unfair discrimination
Elimination of unfair discrimination
Every Employer must take steps to promote equal opportunity in the workplace by eliminating
unfair discrimination in any employment policy or practice.

Prohibition of unfair discrimination

• No person may unfairly discriminate, directly, or indirectly, against an employee, in
any employment policy or procedure on one or more groundings, including race,
gender, sex, personality, marital status, family responsibility, ethnic, colour, sexual
orientation, age, disability, religion, HIV status, conscience, belief, political opinion,
culture, language and birth

35
It is not unfair to:
• Take affirmative action measures consistent with the purpose of this Act
• Distinguish, exclude or prefer any person on the basis of an inherent requirement of a
job

Medical testing
Medical testing of an employee is prohibited unless:
• Legislation permits or requires testing or
• It is justifiable in the light of medical facts, employment conditions, social policy, fair
distribution of employee benefits or the inherent requirements of a job

Psychometric testing
Psychometric testing and other similar assessments of an employee are prohibited unless the
test or assessment being used
• Has been scientifically shown to be valid and reliable
• Can be applied fairly to employees
• Is not biased against any employee or group

Duties of designated employers

Every designed employer must, in order to achieve employment

equity, implement affirmative action measures for people from
designated groups. A designated employer must:

• Consult with its employees

• Conduct an analysis
• Prepare an employment equity plan
• Report to the Director-General on progress made in
implementing its employment equity plan

A designated employer must prepare and implement an employment equity plan, which will
achieve reasonable progress towards employment equity in the employer’s workforce
An employment equity plan prepared must state:
• The objectives to be achieved for each year of the plan
• The affirmative action measures to be implemented
• Where underrepresentation of people from designated groups has been identified
by the analysis, the numerical goals to achieve the equitable representation of
suitably qualified people from designated groups within each occupational category
and level in the workforce, the timetable within which this is to be achieve, and the
strategies intended to achieve those goals

36
 • The timetable for each year of the plan for the achievement of goals and objectives
other than numerical goals
• The duration of the plan, which may not be shorter than one year or longer than five
years
• The procedures that will be used to monitor and evaluate the implementation of the
plan and whether reasonable progress is being made towards implementing
employment equity
• The internal procedures to resolve any disputes about the interpretation or
implementation of the plan
• The persons in the workforce, including senior managers, responsible for
monitoring and implementing the plan

Reports
A designated employer that employs fewer than 150 employees must:
• Submit its first report to the director-general within 12 months after the
commencement of this act, or, if later, within 12 months after the date on which the
employer become a designated employer
• Thereafter, submit a report to the director-general once every two years, on the first
working day of October

A designated employer that employs 150 or more employees must:

• Submit its first report to the director-general within 6 months after the
commencement of this act, or, if later, within 6 months after the date on which the
employer become a designated employer
• Thereafter, submit a report to the director-general once every two years, on the first
working day of October

Duty to inform Did you know?

An employer must display at the workplace where it
can be read by employees a notice in the prescribed Every designated employer must:
form, informing them about the provisions of this act
The designated employer must, in each if its
• Assign one or more senior managers to
workplaces, place a prominent place that are
accessible to all employees: take responsibility for monitoring and
• The most recent report submitted by that
implementing an employment equity
employer to the director-general
• Any compliance order, arbitration award or plan
order of the labour court concerning the
• Provide the managers with the authority
provisions of this act in relation to that
employer and means to perform their functions
• Any other document concerning this act
• Take reasonable steps to ensure that the
managers perform their functions

37
Employment Policies and Practices should include:
Recruitment procedures, advertising and
selection criteria
Remuneration, employment benefits and
terms and conditions of employment
Performance evaluation systems
Promotion and Demotion
Transfer
Disciplinary measures other than
dismissal
Appointments and the appointment
process
Job classification and grading
Job assignments
The working environment and facilities
Training and development
Dismissal

There are four tests1 that can be used to determine whether indirect discrimination has
occurred:

1. Has a requirement or condition been applied equally to either sex or all racial groups?
2. Is that requirement or condition one with which a considerably small number of women
(or men) or persons of the racial group in question can comply than those of the opposite
sex or persons not of that racial group?
3. Is the requirement or condition justifiable irrespective of the sex, colour, race
nationality, ethnic or national origins of the person in question?
4. Has the imposition of the requirement or condition operated to the detriment of a person
who could not comply with it?

Harassment at the Workplace

Workplace harassment can vary from verbal / emotional or physical badgering to
physical/sexual assault. Such harassment includes any comment, action, or type of behaviour
that is threatening, insulting, intimidating or discriminatory and upsets the workplace
environment. It is a form of discrimination and unlawful.

Types of Harassment
• Verbal harassment
• Bullying
• Other overt and/or deliberate conduct:
o Exclusion or victimisation
• Non-verbal harassment:
o Displaying racist drawings, or posters that might be offensive to a particular
group.
• Managerial harassment/abuse:
o Overbearing supervision or other misuses of power or position
o Threats designed to impose fear and intimidate a worker
o Deliberately undermining a competent worker by overloading and constant
criticism
o Deliberately withholding work-related information or supplying incorrect
information

38
 o Deliberately ignoring a worker
o Deliberately creating an intolerable work Did You Know?
environment with the view to force a
worker to resign. This could include unfair The victim of harassment is not
demotion, unexplained transfers or necessarily the person who is the
unreasonable demands to work overtime
target of the harassment, but, can be
o Preventing an individual’s progress by
intentionally blocking promotion or anyone affected by the offensive
training opportunities behaviour.
• Sexual harassment

Harassment during an Interview

Harassment can also take place during a job interview. This occurs when Employers
start asking questions about the interviewee's race, gender, religion, marital status, age,
disabilities, ethnic background, country of origin, sexual
preferences or age. These are discriminatory questions,
Note
because they are not relevant to the interviewee's abilities,
skills, and qualifications to do the job.
Workplace harassment isn’t limited
to sexual harassment and doesn’t
Affirmative action preclude same-gender harassment.
Affirmative action measures are measures designed to
ensure that suitably qualified people from designated groups
have equal employment opportunities and are equitably
represented in all occupational levels in the workforce of a designated Employer.

Affirmative action measures implemented by a designated Employer must

include:
• Measures to identify and eliminate employment barriers, including unfair
discrimination, which adversely affect people from designated groups;
• Measures designed to further diversity in the workplace based on equal dignity and
respect of all people;
• Making reasonable accommodation for people from designated groups in order to
ensure that they enjoy equal opportunities and are equitably represented in the
workforce of a designated Employer;
• Ensuring the equitable representation of suitably qualified people from designated
groups in all occupational levels in the workforce;
• Retaining and developing people from designated groups and to implement appropriate
training measures, including measures in terms of an Act of Parliament providing for
skills development.

39
Employment Equity (equal opportunities) is achieved when the Employer:

● Ensures the fair treatment of its Employees;

● Empowers its Employees;
● Ensures the implementation of affirmative action measures to address
the historical disadvantages experienced by designated groups;
● Promotes diversity in the workplace.

Employment equity committee (EEC)

An EE representative must be a member of the permanent staff and have a clear
understanding of:
● The Employment Equity Plan (EEP) and its targets;
● The EEP’s objective of creating an equitable work environment for all employees,
that is, establish measures to:
o Identify and eliminate employment barriers, including unfair discrimination;
o Further diversity in the workplace;
o Ensure equal opportunity and equitable representation of designated groups in
the workforce;
o Ensure the equitable representation of suitably qualified people from the
designated group in all occupational categories and levels in the workforce;
o Retain, train, and develop people from designated group.

The EEC is selected from the employees, and should come from all the different
departments/divisions or sections, and be representative of the broad employee community for
example:

Group Name Division/Section Disability

African Male
African Female
Indian Male
Indian Female
Coloured Male
Coloured Female
White Female
White Male

• It is important for the EEC representatives, the designated employer and

assigned senior manager to understand their respective roles and responsibilities.
• In the event that agreement is not reached during such consultations, the parties
may revert to a dispute resolution process.

40
 The EEA is very clear that management must consult with
the EEC and that the EEC does not have any decision-
making powers. Consultations must be of a bona fide nature.

Roles and responsibility of EEC

Members of the EEC:
● Must continuously display relevant notices, inform, communicate, report-back and
consult their constituencies about equity-related matters, identify employment barriers
and measures to further diversity in the workplace, to seek solutions to problems raised,
as well as compliance with the Act.
● Must challenge any EE related issue and be heard.
● Must abide by an agreed code of conduct and understand the roles and responsibilities
of the various stakeholders.
● Must take responsibility over policies, procedures and process within the company in
order to ensure conformity to the EEA.
● Must ensure procedural correctness with regard to employment equity and fairness
during the selection and recruitment process, and when it is of the view that the process
was substantively unfair, it must refer the matter through the appropriate channels.

● The EEC may only act in an advisory capacity when any anomalies or complaints
brought to its attention.
The EEC shall be bound by its Constitution.
THE CONSTITUTION SHALL SET OUT:
● The intent of the EEC
● The Objectives
● The election of the EEC members from the ranks of employees
● Term of office as EE representatives; resignations and replacements; removal from
office
● Membership held by senior management (a legal requirement), and the role and
responsibility of the assignment senior manager
● The election of a Chairperson and his/her duties and responsibilities;
● The roles and responsibilities of the designated employer and MD
● The roles and responsibilities of the EEC members;
● The code of conduct for EEC members / EE representatives
● Decision-making and authority;
● Meetings: The frequency of meetings; what constitutes a quorum; record keeping;
reporting responsibilities; steps to be taken when EE representatives are unable to
attend or repeatedly fail to attend meetings;
● Inviting assistance from third parties or experts
● Protection against victimisation
● Communication channels
● Support and infrastructure
● Dispute resolution procedures

41
 ● Changing the Constitution

Activity

Consider if following scenarios are fair

A lady who wears size 42 clothing is not employed as a model at a well-known

fashion house- a

A male is not considered for the position of prison warder in a female prison as
the position requires the candidate to do body searched of the prisoners-b

Male models contract is terminated by a popular perfume house when he

discloses that he is gay and the company justifies their decision by saying that
their target market for that product is heterosexual sportsman-c

A pilot is injured in a motor vehicle accident whilst he is on annual leave. He

becomes blinds as a result of the accident and his employer terminates his
services on the basis that he lost his eyesight-d

42
Please circle true or false

1. Medical testing of an employee is prohibited unless True False

legislation permits or requires testing or it is
justifiable in the light of medical facts, employment
conditions, social policy, fair distribution of employee
benefits or the inherent requirements of a job

2. An employment equity plan prepared must state the True False

objectives to be achieved for each year

3. A designated employer that employs fewer than 150 True False

employees must submit its first report to the director-
general within 6 months after the commencement of
this act

4. Psychometric testing and other similar assessments of True False

an employee just needs to be valid and reliable

False 4.
False 3.
True 2.
True 1.

D: fair

C: fair

B: fair

A: fair

Answer key

43
 Occupational Health and Safety Act

Purpose:
The Occupational Health and Safety Act supported by subordinate legislation, Regulations and
Codes of Practice, give practical guidelines on how to manage health and safety issues. The
Act governs the health and safety for the diverse industry of South Africa. It regulates and
control health and safety in all organisations, from a normal office environment to more
hazardous environments e.g. industrial plants and construction sites.
Primary objectives of employers:
Legislation requires the employer to do everything ‘‘reasonably Note:
practicable’’ to protect people from harm.
• The worker must know what
The general duties of the employer are to: the dangers of the work are.
• But it is always the employer
• Choose safety representatives and consult with the who decides what is a threat to
workers' organisation about the safety representatives workers' safety. As accidents
• Inform workers of the dangers in the workplace threaten employees.
• Reduce dangers to a minimum before issuing protective
clothing and issue protective clothing where necessary
• Give necessary training to workers who use dangerous
machines and materials
• Prevent workers from using or working with dangerous materials or machines,
unless all safety rules have been followed
• Make sure that somebody who knows the work is supervising the operations to
ensure the safety of workers
Employers need to look at their work situation and ask questions like:
• Did we identify hazards, what can go wrong?
• Did we look at who might be harmed?
• How can people be affected?
• What could be done about it?
Primary objectives of employees:
• Workers must take reasonable precautions over their own health and safety at work.
• They must follow any precautions and rules about safety and health.
• They must report any unsafe circumstances or accidents as soon as possible, to the
safety representative.
• Anyone who acts in a reckless way or damages any safety measures can be charged.
• Also, if the worker does this damage on purpose, then the employer can claim damages
from him/her.

44
Dealing with risks in the workplace:
• Remember that the employers are still obligated to deal with the risk at hand. In other
words, it cannot just be disregarded; the employer still needs to take reasonable steps
to ensure that a workplace is safe and without risk to the health and safety of their
employees and others involved.

• Reasonable steps exercised by the employer could for example include the following:
-inform the employees of the decision and measures taken to protect them
-what type of instruction, training, supervision, personal protective equipment etc. are
needed to protect them
-Assess if the reasonable steps actually works in order to provide a safe and healthy
workplace.
Reporting an incident:
• The employer must keep a record of all accidents and safety or health incidents in the
workplace.
• The employer must report certain accidents or incidents to the safety representative and
to the Department of Labour - for example, the release of a dangerous material or
substance that is normally kept locked away.
Safety representatives:
• The employer should appoint one safety representative Did you know?
for every 20 workers.
• The main objective of the Act
• There must be at least one representative for every 50
could be described as a pro-
workers.
active attempt by government
• The employer must explain to the workers' organisation to prevent and avoid work
what responsibilities the safety representatives will related injuries and illness.
have and how the representatives will be selected. • This Act is important because it
keeps the working population
Safety committees:
(in SA, approximately 12
• In every workplace where there are two or more safety million) healthy and safe.
representatives, there must also be a safety committee.
This committee must meet at least every three months.
• The committee must deal with all safety and health
issues that affect workers. The safety committees have
certain functions and powers.

45
 Case
Activity:
Study:

Circle the most correct statement.

1. The Occupational Health and Safety Act is concerned with
a. Toxic leaders
b. Organisational culture
c. Health and safety issues

2. An employer in the workplace must provide employees with

a. Safety representatives
b. Adequate training and protective wear
c. All of the above

3. High risk sectors for accidents at work are

a. Fishing and farming construction
b. Beauty services
c. Corporations

4. An accident
a. Is a threat to the wellbeing of employees
b. Occurs often
c. Is costly

5. Safety committees must meet at least

a. Every month
b. Every three months
c. Every second week

B 5.
A 4.
A 3.
C 2.
C 1.
Answer key

46
 Unemployment Insurance Act

Purpose Note:
• The purpose of this Act is to establish an This Act does not apply to:
unemployment insurance fund to which employers
and employees contribute • Employees that are employed for
less than 24 hours a month
• The employees who become unemployed or their
• Members of parliament, cabinet
beneficiaries are entitled to benefits. This will ministers, deputy ministers
alleviate the harmful economic and social effects of • Members of provincial executive
unemployment. councils, members of provincial
Right to benefits legislatures and municipal
councillors.
Subject to the provisions of this Act, a contributor or a
dependant is entitled to the following benefits:
• Unemployment benefits
• Illness benefits
• Maternity benefits
• Adoption benefits
• Dependant’s benefits
• A contributor who is employed as a domestic worker by more than one employer and
whose employment is terminated by one or more employers is, despite still being
employed, entitled to benefits in terms of this Act if the contributor’s total income
falls below the benefit level that the contributor would have received if he or she had
become wholly unemployed.
• A contributor employed in any sector who loses his or her income due to reduced
working time, despite still being employed, is entitled to benefits if the contributor’s
total income falls below the benefit level that the contributor would have received if
he or she had become wholly unemployed, subject to that contributor having enough
credits.

47
Calculation of benefits
• The Department of Labour will work out how much money a person can claim
• Benefits may not be more than a person’s normal salary and are based on the average
daily rate.
• The amount will vary according to the length of time that the person has been paying
into the fund.
• A contributor is eligible to receive one day’s benefit for every six completed days of
employment, up to a maximum of 238 days (34 weeks)
• For the maximum amount, a worker must have been paying into the fund for four
years before applying for benefits
• Unemployment benefits must be paid to the unemployed contributor regardless of
whether or not the contributor has received benefits within that four-year cycle, if the
contributor has credits.
• If an application for benefits is made within the four-year cycle of a previous claim,
the Fund must subtract the number of days in respect of which benefits have already
been paid in that cycle.
• The payment of maternity benefits may not affect the payment of unemployment
benefits.

Did you know?

Calculation: • The contribution that is deducted
• if paid monthly, by multiplying the monthly from your salary is equal to 1% of
remuneration by 12 and dividing it by 365; the total of all earnings, commission
excluded.
• if paid weekly, by multiplying the weekly
• The employer also contributes 1%
remuneration by 52 and dividing it by 365.
for the worker.
• If the contributor’s remuneration fluctuates
• The total contribution that is paid is
significantly from period to period, the
therefore 2%.
calculation must be based on the average
remuneration of that contributor over the
previous six months.
• Contributors who earned less than a particular amount (known as the
“benefit transition income level”) are entitled to a percentage of their
previous pay.
o If a contributor was paid weekly, daily income is the weekly rate of
pay divided by 7.
o If a contributor was paid fortnightly, daily income is the fortnightly rate of
pay divided by 14.
o If a contributor was paid monthly, daily income is the monthly rate of pay
multiplied by 12, then divided by 365
• Contributors who earned more than the benefit transition income level are entitled
to a flat benefit, equal to the entitlement of a contributor who was previously paid
at the benefit transition income level.

48
 • A contributor who previously earned a low wage is entitled to receive benefits
representing a larger proportion of her or his previous income than a contributor
who previously earned a higher wage
Unemployment benefits
Right to unemployment Application to unemployment Payment of unemployment
benefits benefits benefits
An unemployed contributor is • Application for • Any period of unemployment
entitled to unemployment unemployment benefits must must be calculated from the
benefits for any period of be made in the prescribed date of unemployment
unemployment lasting more form at an employment • The department of labour must
than 14 days office. pay the unemployment
• The application must be benefits to the contributor at
If the reason for unemployment made within 12 months of the employment office at
is: the termination of the which the application was
• The termination of the contract of employment made
contributor’s contract of • The claims officer must • If the contributor receives
employment investigate the application unemployment benefits and
• The dismissal of the and, if necessary, request without just reason refuses to
contributor further information regarding accept
• Insolvency the applicant’s continued • Appropriate, available work,
• Application is made in unemployment. or to undergo appropriate
accordance with the training or vocational
prescribed requirements counselling, the claims officer
• The contributor is registered may impose a penalty of up to
as a work-seeker a maximum of thirteen weeks
The contributor is capable of during which no benefits may
and available for work. be paid to the contributor.

Did you know?

An unemployed contributor is not entitled to the
benefits if:

• The contributor fails to report at the times and dates

stipulated
• The contributor refuses without just reason to
undergo training and vocational counselling for
employment under any scheme

49
 Illness benefits
Right to Illness benefits
A contributor is entitled to the
illness benefits If:
• The contributor is unable to
perform work on account of
illness
• The contributor fulfils any
prescribed requirements in
respect of any specified
illness
• Application is made for
illness benefits in accordance
with the prescribed
requirements
Application for Illness
benefits
• Application for illness
benefits must be made
personally in the prescribed
form at an employment
office.
• If the contributor cannot
lodge the application
personally, the claims officer
may authorise any other
person to lodge the
application on behalf of the
applicant.
• The application for illness
benefits must be made within
six months of the
commencement of the period
of illness
• The claims officer must
investigate the application
and, if necessary, request any
further information
Payment of Illness benefits
• The period of illness must be
determined from the date the
contributor ceases to work as
a result of the illness
• The department of labour
must pay the illness benefits
at the employment office at
which the application was
made or
• To the contributor or any
other person authorised by the
contributor who is accepted
by the claims officer to be so
authorised.

Did you know?

A contributor is not entitled to illness benefits if:

• The period of illness is less than seven days

• For any period during which the contributor is entitled to
unemployment benefits or adoption benefits
• Without just reason, refuses or fails to undergo medical
treatment

50
 Maternity benefits
Right to maternity benefits Application for maternity Payment of maternity
benefits benefits
• A contributor who is • An application for maternity • The department of labour
pregnant is entitled to the benefits must be made in the must pay the maternity
maternity benefits or any prescribed form at an benefits to the contributor at
period of pregnancy or employment office at any the employment office or any
delivery and the period time before or after childbirth other employment office
thereafter, if application is • The application must be determined by the applicant at
made in accordance with made within a period of 12 the time of application.
prescribed requirements. months after the date of
• The maternity benefit may childbirth
not be more than the • The claims officer must
remuneration the contributor investigate the application
would have received if the and, if necessary, request
contributor had not been on further information
maternity leave.
• The maximum period of
maternity leave is 17 to 32
weeks.
• A contributor who has a
miscarriage during the third
trimester or bears a still-born
child is entitled to a full
maternity benefit of 17 to 32
weeks.

Did you know?

A contributor is not entitled to maternity benefits unless she
was in employment, whether as a contributor or not, for at
least 13 weeks before the date of application for maternity
benefits

51
Adoption benefits
Right to adoption benefits Application for adoption Payment of adoption
benefits benefits
Only one contributor of the • An application for • The department of Labour
adopting parties is entitled adoption benefits must be must pay the adoption
to the adoption benefits made in the prescribed benefits to the contributor
contemplated only if: form at an employment at the employment office at
• The child has been office. which the application was
adopted in terms of the • The application must be made or any other
Child Care Act made within six months employment office
• The period that the after the date of the order determined by the applicant
contributor was not for adoption at the time of application.
working was spent caring • The claims officer must
for the child investigate the application
• The adopted child is and, if necessary, request
below the age of two further information
• The application is made regarding the period the
in accordance with the applicant was not
prescribed requirements working in order to care
• The entitlement for the adopted child
contemplated commences
on the date that a
competent court grants an
order for adoption in
terms of the Child Care
Act
• The benefit may not be
more than the
remuneration the
employer would have
paid the contributor if the
contributor had been at
work.

52
Dependants benefits
Right to dependent benefits Application for dependent Payment of dependent
benefits benefits
The surviving spouse or a life • An application for • The benefit payable to the
partner of a deceased dependant’s benefits must be dependant is the
contributor is entitled to the made in the prescribed form unemployment benefit
dependant’s benefits at an employment office. • The department of Labour
contemplated if application is • The application must be made must pay the adoption benefits
made: within the period of 18 to the contributor at the
• In accordance with prescribed months of the death employment office at
requirements • The claims officer must which the application was made
• Within 18 months of the investigate the application or any other employment office
death of the contributor and, if necessary, request determined by the applicant at
further information relevant the time of application.
Any dependant child of a to processing the application.
deceased contributor is entitled
to the dependant’s benefits if:
• There is no surviving spouse
or life partner
• The surviving spouse or life
partner has not made an
application for the benefits
within 18 months of the
contributor’s death

Any nominated beneficiary of

the deceased contributor may
claim dependant’s benefits if:
• A nominated beneficiary will
qualify for benefits if there is
no surviving spouse, life
partner or dependant children
of the deceased contributor.

53
General
Suspension of contributors right to benefit
Did you know?
After giving a contributor or a dependant an opportunity to
make written representations, the Commissioner may, on Contributors or dependants who
written notice with reasons provided, suspend a contributor have been paid benefits that they are
or dependant for a period of up to five years from receiving not entitled to in terms of this Act or
benefits in terms of this Act if the contributor or dependant: paid benefits in excess of their
entitlement must repay such benefits
• Made a false statement in an application for benefits to the fund
• Submitted a fraudulent application for benefits
• Failed to inform a claims officer of the resumption of
work during the period in respect of which
• benefits were being paid
The decision to suspend a contributor from receiving payments does not:
• Absolve an employer from that employer’s duty to contribute to the Fund
• Limit an employer’s right to be reimbursed for any contribution paid on
behalf of the suspended
• Contributor
Disputes relating to payment or non-payment of benefits
• A person who is entitled to benefits in terms of this Act may appeal to a regional
appeals committee if that person is aggrieved by a decision of: The Commissioner to
suspend such person’s right to benefits or, a claims officer relating to the payment or
non-payment of benefits.
• A person who is dissatisfied with the decision of a regional appeals committee may
refer the matter to the National Appeals Committee for a decision.
• A decision by the National Appeals Committee is final, subject to judicial review.
Information to be supplied by employer
Every employer must, as soon as it commences activities as an employer, provide
information. The information must:
• Include the street address of the business, and any of its branches, of the employer;
• Include the names, identification numbers and monthly remuneration of each of its
employees, and must state the address at which the employee is employed
• If the employer is not resident in the Republic, or is a body corporate not registered in
the Republic, they must include the particulars of the authorised person who is
required to carry out the duties of the employer
• Every employer must, before the seventh day of each month, provide the
Commissioner with all information for the previous month in terms of subsection

54
Recovery of losses caused by employees of fund
Loss or damage to the Fund includes:
• An irregular payment of Fund money
• A payment without a proper supporting voucher
• The failure to carry out a duty leading to a fruitless expenditure of Fund moneys
• A deficiency in any Fund moneys, stamps, securities, documents with face or
potential value, or
• Fund property
• Damage to any Fund property
If an employee of the Fund causes any loss or damage to the Fund, the department of labour
may:
• Institute an enquiry into the loss or damage
• Determine whether the employee is liable for the loss or damage
• If, at the termination of an employee’s employment, there remains any amount
outstanding in respect, that outstanding amount may be deducted from any moneys
due to the employee.
• Any employee who is aggrieved by a determination made by the department of
Labour may, within 30 days of the date of notification appeal to the Minister in
accordance with the grievance procedure applicable to state employees.
General prohibited conduct
No person may:
• Knowingly make a statement or cause a statement to be made which is materially
false or which
• results in an incorrect payment of benefits in an application for benefits in terms of
this Act;
• Wilfully make any false entry on a contributor’s record card or any other book, record
or
• document relating to either a contributor’s employment history or to a contributor’s
claim for
• benefits
• Contravene, or refuse or fail to fully comply with any provision of this Act or of any
regulation or
• Notice issued in terms of this Act.
Any person who contravenes the above are subsection guilty of an offence.
• Any person convicted of an offence in terms of this Act is liable to a fine or to
imprisonment, or to both a fine and imprisonment.

55
 Activity

1) 6) 2) 4) 3) 9)
10)

8)

5)
7)

Across Down
1. What benefit can you claim from if you 2. What benefit can you claim from if your
have followed the Child Care Act spouse is recently deceased

5. The______ contribution paid to UIF is 2% 3. What benefit can you claim within 6
months

7. What does the commissioner have to give 4. Who does this act not apply to
to suspend a contributor

8. What information must the employee 6. _______must be made in the prescribed

provide to the commissioner form at an employment office.

10. No person may ____to comply with any 9. Any person convicted of an ____ is
provision of this Act liable to a fine

fail 10.
Offense 9.
Identification 8.
Notice 7.
Application 6.
Total 5.
Parliament 4.
Illness 3.
Dependent 2.
Adoption 1.

Answer key

56