NOTICE 1358 OF 2005 DEPARTMENT OF LABOUR
Human Resource Policies and Practices.
CONTENTS
1. FOREWORD
2. OBJECTIVE
3. SCOPE AND LEGAL PRINCIPLES
4. STRUCTURE OF THE CODE
5. IMPLEMENTING EMPLOYMENT EQUITY
PART A: COMMENCING EMPLOYMENT
6. JOB ANALYSIS AND JOB DESCRIPTIONS
7. RECRUITMENT & SELECTION
8. INDUCTION
9. PROBATION
10. MEDICAL, PSYCHOLOGICAL & OTHER SIMILAR ASSESSMENTS
PART B: DURING EMPLOYMENT
11. TERMS AND CONDITIONS OF EMPLOYMENT
12. REMUNERATION
13. JOB ASSIGNMENTS
14. PERFORMANCE MANAGEMENT
15. SKILLS DEVELOPMENT
16. PROMOTION AND TRANSFER
17. CONFIDENTIALITY AND DISCLOSURE OF INFORMATION
18. RETENTION
19. HARASSMENT
20. DISCIPLINE, GRIEVANCE AND DISPUTE RESOLUTION
PART C: ENDING EMPLOYMENT
21. TERMINATION OF EMPLOYMENT
22. EXIT INTERVIEWS
1. FOREWORD
The Employment Equity Act, 55 of 1998 ("the Act") imposes a duty on
employers to eliminate unfair discrimination. It also provides a framework for
the attraction, development, the advancement and retention of an employer’s
human resource talent. Research has shown that employers can increase productivity,
motivation and resourcefulness in the workplace when they invest in their people
and treat them with fairness and equity. This is secured by eliminating the historical
barriers that prevent the advancement of the designated groups (Black people including
African, Coloured and Indian, Women and People with Disabilities). This ensures
that positive or affirmative action measures are in place to expedite their growth
and advancement.
In the context of challenges of a compounded diverse global economy and Constraints
around infrastructure, skills, poverty, unemployment and service delivery, employers
are increasingly aware that having racial, gender and disability diversity is
key to business growth and development. Sustaining this growth requires ongoing
commitment toward eliminating barriers, including skills development, in its general
and specific forms. Some of the main challenges for employers include; attracting,
managing, developing and retaining talent in the workforce through effective human
resource management. In this context, the implementation of effective employment
equity strategies will assist employers to maximize human resource development
through the eliminating unfair discrimination and barriers and by promoting affirmative
action. This Code provides guidelines to assist employers in implementing these
initiatives.
2. OBJECTIVE
2.1. The objective of this Code is to provide guidelines on the elimination of
unfair discrimination and the implementation of affirmative action measures in
the context of key human resource areas, as provided for in the Act. This Code
is not intended to be a comprehensive human resources Code, but rather an identification
of areas of human resources that are key to employment equity and can be used
to advance equity objectives.
2.2. The guidelines in the Code will enable employers to ensure that their human
resource policies and practices are based on non- discrimination and reflect employment
equity principles at the commencement of employment, during employment and when
terminating employment.
3. SCOPE AND LEGAL PRINCIPLES
3.1. This Code is issued in terms of section 54 of the Employment Equity Act and
must be read in conjunction with the Act and other Codes issued in terms of the
Act1.
3.2. The Code should also be read in conjunction with the Constitution of South
Africa and all relevant legislation, including the following:
3.2.1. the Labour Relations Act, 66 of 1995 as amended;
1 Code of Good Practice on the Handling of Sexual Harassment Cases; Code of Good
Practice on the Preparation, Implementation and Monitoring of Employment Equity
Plans; Code of Good Practice on the Employment of People with Disabilities and
Code of Good Practice on Key Aspects of HIV/AIDS and Employment.
3.2.2. the Basic Conditions of Employment Act, 75 of 1997 as amended;
3.2.3. the Skills Development Act, 97 of 1998;
3.2.4. the Skills Development Levies Act, 9 of 1999; and
3.2.5. the Promotion of Equality and Prevention of Unfair Discrimination Act,
4 of 2000.
3.3. This Code applies to all employers and employees covered by the Act.
3.4. This Code is intended to be a tool to aid employers to implement employment
equity by providing principles that should be incorporated into employment equity
plans and that guide policies and practices. This Code is also intended to provide
guidelines to employers to consider and apply as appropriate to their circumstances.
4. STRUCTURE OF THE CODE
4.1. The structure of this Code mirrors the life cycle of an employee in employment.
It deals with possible barriers and unfair discrimination that could occur at
each phase, including commencing employment, during employment and on termination
of employment. It also describes affirmative action measures that could be used
at each phase to advance the objectives of the Act.
4.2. Each topic focuses on the following areas:
4.2.1. Scope. This section provides a brief definition of the
topic in the context of the employment life cycle.
4.2.2. Impact of employment equity. This section deals with non-discrimination
principles and affirmative action measures that are relevant to the topic.
4.2.3. Policy and practice matters. This section provides information
about the policy and practice matters that could arise, and makes suggestions
regarding their implementation.
4.2.4. Link with other areas. This section identifies cross-
references to other key topics as well as other relevant Codes and legislation
dealt with in the Codes.
5. IMPLEMENTING EMPLOYMENT EQUITY
5.1. SCOPE
5.1.1. Implementing employment equity involves two key initiatives:
5.1.1.1. Eliminating unfair discrimination in human resource policies and practices
in the workplace; and
5.1.1.2 Designing and implementing affirmative action measures to achieve equitable
representation of designated groups in all occupational categories and levels
in the workplace.
5.1.2 This section provides a general outline of these areas and the different
conceptual and methodological approaches used to deal with them in the workplace.
5.2. IMPACT ON EMPLOYMENT EQUITY Eliminating unfair discrimination
5.2.1 Section 6 of the Employment Equity Act prohibits unfair discrimination2
against employees or job applicants on one or more grounds of personal or physical
characteristics like race, gender, sex, pregnancy, marital status, family responsibility,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
HIV status, conscience, belief, political opinion, culture, language and birth.
These "prohibited" or other arbitrary grounds cannot be taken into account
in employment decision-making. However, it is fair for them to be taken into account
where they are relevant to either affirmative action measures or the inherent
requirements of a job.
5.2.2 The Act prohibits both direct and indirect unfair discrimination. Direct
unfair discrimination is easy to identify in the workplace because it makes
a direct distinction on the basis of one or more of the prohibited grounds.
Indirect unfair discrimination (often called adverse impact or systemic discrimination)
on the other hand, is more difficult to recognize. Indirect unfair discrimination
occurs when a policy and practice appears to be neutral but has a discriminatory
effect or outcome for a particular group of employees and cannot be justified.
The employer’s motive and intent is generally considered to be irrelevant
in determining whether unfair discrimination has occurred. In certain circumstances,
the refusal to make reasonable accommodation of an employee’s needs and
circumstances, where this can be done without undue hardship to the employer,
can constitute unfair discrimination.
5.2.3 Equality can involve a formal notion of treating everyone who is in a
similar position the same. This can perpetuate unfairness when those who hold
similar positions e.g. all senior managers have different needs and circumstances
that impact on their ability to perform effectively.
The Constitution requires employers to move beyond formal equality to substantive
equality by acknowledging the differences between employees and treating them
differently on the basis of those differences. This is necessary to ensure that
all employees are treated fairly. Equity therefore invokes the requirement of
"fair" treatment in order to achieve substantive equality as an outcome
in the workplace. Equal treatment and equal opportunity, like equality, subjects
everyone to the same rules without distinction. Equity requires changing the
rules so that their application is fair.
2 Unfair discrimination can take place by means of an action or an omission.
5.2.4 Unfair discrimination is prohibited in the workplace. In order for employers
to execute one of their primary responsibilities of eliminating all forms of
unfair discrimination in the workplace, it is recommended that all employers
should conduct an audit and analysis of all their employment policies and practices,
as well as the working environment and facilities. The audit should identify
whether any of the policies or practices applicable in the workplace contain
any unfair discrimination or barriers to the recruitment, promotion, advancement
and retention of members of designated groups. Once the actual or potential
barriers are identified, an employer should consult about the strategies for
eliminating these barriers. These strategies should be incorporated into the
development and implementation of the Employment Equity Plan for that workplace.
Regular monitoring in the workplace should occur to ensure that the unfair discriminatory
policies or practices do not recur or manifest themselves in different ways.
Implementing affirmative action measures to achieve employment equity
5.2.5 Removing barriers3 is only the first step towards ensuring fairness and
equity in the workplace. In the context of historical disparities in South Africa,
the Act requires employers, employees and representative trade unions to jointly
develop strategies to advance designated groups by adopting appropriate affirmative
action measures and incorporating them into formal Employment Equity Plans. Affirmative
action measures are essentially remedial measures designed to achieve equity in
employment as an outcome4.
5.3. POLICY AND PRACTICE
5.3.1 This section provides guidance in relation to the audit, analysis and consultation
aspects of the employer’s obligations5.
5.3.2 Under the Act every designated employer is required to undertake four processes
when developing a strategy to implement employment equity.
5.3.2.1. consulting with its employees and representative trade unions;
5.3.2.2. auditing and analyzing all employment policies and practices in the workplace
and developing a demographic profile of its workforce;
5.3.2.3. preparing and implementing an employment equity plan; and
5.3.2.4. reporting to the Department of Labour on progress made on the implementation
of its employment equity plan.
3A barrier exists where a policy and practice, which also includes
procedures, guidelines or rules, or an aspect of it that limits the opportunities
of employees.
4 This is covered in more detail in the Code of Good Practice on the Preparation,
Implementation and Monitoring of Employment Equity Plans.
5 The planning and reporting processes are dealt with in the Code of Good Practice
on the Preparation, Implementation and Monitoring of Employment Equity Plans.
The policy and practice analysis
5.3.3. Employers should develop realistic employment equity plans that are workplace
specific and capable of measurement. This should be informed by conducting a comprehensive
audit and analysis of all existing and potentially unfair discriminatory practices
and barriers.
5.3.4. The analysis of policies and practices as well as other written documentation
can be done through the collection of the information, listing what is applicable
and identifying whether any documentation reflects direct or indirect unfair discrimination
or barriers to the advancement of designated groups.
5.3.5. Practices are generally the informal or unwritten rules that prevail in
the workplace and can be analysed through a combination of employee attitudinal
surveys, individual interviews and focus groups to establish perceptions of their
impact on achieving employment equity.
5.3.6. The relevant questions to be posed in the analysis would involve looking
at whether the policy or practice is:
5.3.6.1. unfairly discriminatory;
5.3.6.2. valid;
5.3.6.3. applied consistently to all employees; and
5.3.6.4. compliant with legislation.
5.3.7. An employer should formulate appropriate barrier removal measures for each
of the forms of unfair discrimination identified in the audit of policies and
practices. These mechanisms would also be the subject of consultation and should
be incorporated into the Employment Equity Plan of that employer. Appropriate
timeframes, strategies and responsibilities should be allocated for each barrier
removal measure.
5.3.8. An employer should communicate the outcome of the audit and analysis
to employees in as transparent a manner as possible. The method of communication
will depend on the culture of the employer; the frequency and common terms of
communication; and the role of the Employment Equity Forum or other consultative
structure. The leadership of the employer should also receive feedback to be
able to provide strategic input with regard to appropriate barrier removal.
Developing a workforce profile and setting numerical targets for equitable
representivity
5.3.9. A workforce profile is a snapshot of employee distribution in the various
occupational categories and levels. Under-representation refers to the statistical
disparity between the representation of designated groups in the workplace compared
to their representation in the labour market. This may indicate the likelihood
of barriers in recruitment, promotion, training and development.
5.3.10. Collection of information for the workforce profile is done through an
employee survey. It is preferable for employees to identify themselves to enable
the employer to allocate them to a designated group. Only in the absence of an
employee's self-identification, can an employer rely on existing or historical
data to determine the employee's designated group status.
5.3.11. The workforce profile should indicate the extent to which designated groups
are under-represented in that workforce in occupational categories and levels.
This should be compared to the Economically Active Population at national, provincial
or regional, or metropolitan economically active population or other appropriate
benchmarks. Employers should set numerical targets for each occupational category
and level informed by under-representation in the workforce profile and national
demographics. The extent of under-representation revealed by the workforce profile
represents the ideal goal reflected as the percentage for each occupational category
and level for that workplace.
5.3.12. Employers, employees and trade unions should prioritise the least under-represented
groups within the workforce. For example, an employer in the consultation
process should focus more on the areas where the most imbalances appeared during
the audit and analysis.
5.3.13. Numerical targets will contribute to achieving a critical mass of the
excluded group in the workplace. Their increased presence and participation will
contribute to the transformation of the workplace culture and to be more affirming
of diversity. Employers are required to make reasonable progress towards achieving
numerical targets to achieve equitable representation. This means that an employer
should track and monitor progress on a regular basis and update its profile continuously
to reflect demographic changes.
5.3.14. Consultation The success of employment equity depends largely on the efficacy
of the consultation process. Employers, employees and trade unions must be willing
to play a constructive role in the consultation process. Regular and meaningful
consultation will contribute to a joint commitment to workplace transformation.
It may also foster workplace democracy and productivity. Consultation will ensure
that realistic employment equity plans are prepared which address the training
and development of designated groups and the adaptation of the workplace to affirm
difference. The involvement of trade unions in the consultation process is not
enough. Employers must also consult with employees from across all occupational
categories and levels.
5.3.15. It is essential to ensure that whatever form consultation takes, it does
not undermine existing collective bargaining processes or existing relationships.
5.3.16. Transformation committees or other structures that already exist, which
bring together employees and management, may need to be adopted in order to serve
the consultation purposes of the Act. Necessary adaptations may include bringing
in representatives from segments of the workforce that do not already participate,
including designated or non-designated groups or trade unions. Where workplace
forums exist, there should be a vehicle for consultation, and attempts should
be made to ensure that these are as representative as possible. Where no structures
exist or current structures are impractical for employment equity consultation,
the employer should initiate a process to establish a consultative structure and
or support an employee initiative of this nature. Criteria for appointment of
representatives to the structure, the number of representatives, their roles and
responsibilities and mandates will have to be clearly set out. The representatives
on the structure should be trained on understanding and implementing the key components
of the Employment Equity Act.
5.3.17. Disputes will inevitably arise in the course of consultation. Employees
may feel that they are not being sufficiently included in decision-making, or
employers may grow frustrated at delays that are occasioned as a result of the
need to consult.
5.4. KEY LINKS TO OTHER TOPICS IN THE CODE
5.4.1. Performance management - senior management performance should be, amongst
others, measured against the extent to which they have achieved their numerical
targets.
5.4.2. Recruitment and selection - an employer must take cognisance of numerical
targets when offering employment to suitably qualified job applicants.
5 4.3. Promotions - succession planning and decisions on promotion must take account
of an employer's numerical targets and ensure that under-represented groups in
identified categories are developed and promoted.
PART A: COMMENCING EMPLOYMENT An employer can use a number of
outreach and proactive mechanisms to attract applicants from under-represented
groups.
6. JOB ANALYSIS AND JOB DESCRIPTIONS
6.1. SCOPE
6.1.1. A job description outlines the role and duties of the job and consists
of two components:
6.1.1.1. a description of the outputs of the job (what the job proposes to do.
This description should provide an accurate and current picture of what functions
make up a job, and should not include unrelated tasks. This should outline the
job's location, purpose, responsibilities, authority levels, supervisory levels
and interrelationships between the job and others in the same area; and
6.1.1.2. a description of the inputs of the job (i.e. what the person doing the
job is required to do). This description should provide details about the knowledge,
experience, qualifications, skills and attributes required to perform the job
effectively.
6.1.2. Employers should conduct a job analysis when developing a job description.
A job analysis is the process used to examine the content of the job, breaking
it down into its specific tasks, functions, processes, operations and elements.
6.2. IMPACT ON EMPLOYMENT EQUITY
Job descriptions may either advance or undermine employment equity depending on
how they are written. A job description should clearly state the essential or
inherent requirements of the job. These are the minimum requirements that an employee
needs in order to be able to function effectively in that job. These requirements
should not be overstated so as to present arbitrary or discriminatory barriers
to designated groups. However, in the interests of promoting the appointment of
employees who may not meet all the essential or inherent job requirements, an
employer may decide that an employee who has, for instance, six out of the ten
threshold or essential requirements, will be considered to be suitably qualified,
subject to obtaining the outstanding requirements within a specified time.
6.3. POLICY AND PRACTICE
6.3.1. In order to ensure that job descriptions refer only to the essential or
inherent job requirements, they should comply with the following criteria:
6.3.1.1. Each task or duty in the job description is essential to be able to perform
the job and is not overstated;
6.3.1.2. The job description is free of jargon and is written clearly;
6.3.1.3. The competency specification includes only criteria essential to perform
the duties. This should be objective and avoid subjective elements that can be
interpreted differently;
6.3.1.4. Experience requirements that are not essential, related or arbitrary
to the job should be excluded; and
6.3.1.5. Criteria do not disadvantage employees from designated groups.
6.3.2. An employer may also use job descriptions to promote affirmative action,
for instance, by incorporating potential as a requirement and making reference
to development and training to acquire additional skills and competencies.
6.3.3. A job description should be capable of flexible interpretation in the interest
of promoting affirmative action. In this regard, an employer may list all the
minimum or essential requirements of the job.
6.4. KEY LINKS TO OTHER TOPICS IN THE CODE
6.4.1. Recruitment and selection - Job descriptions that are flexible may aid
the recruitment of employees from designated groups in order to create equitable
representation. Rigid job descriptions may operate as a barrier to attracting
individuals from designated groups with potential.
6.4.2. Performance management - Specificity of job descriptions contributes to
setting clear performance objectives in an employee's career development plan.
This may avoid perceptions of unfair or discriminatory treatment in performance.
6.4.3. Skills development - A clear job description enables the identification
of skills and competency gaps. These gaps could be closed through appropriate
interventions like training and development.
7. RECRUITMENT & SELECTION
7.1. SCOPE
7.1.1. Recruitment and selection is the process that employers use to attract
applicants for a job to determine their suitability. This involves various selection
techniques such as short listing, scoring, interviews, assessment and reference
checks.
7.1.2. This section identifies some of the strategies that can be used to attract
a wide pool of applicants from designated groups.
7.2. IMPACT ON EMPLOYMENT EQUITY
Recruitment and selection processes should be conducted fairly and without unfair
discrimination. One of the barriers in the recruitment process is the inability
to attract sufficient numbers from the designated groups. Attracting as many
applicants as possible from designated groups may ensure that a larger skills
pool is available from which to recruit. Recruitment and selection is often
the most important mechanism to achieve numerical targets and to increase the
representivity of designated groups in the workplace.
7.2.1. A number of areas in recruitment and selection should be reviewed to eliminate
unfair discrimination: These include:
7.2.1.1. Advertising and head hunting;
7.2.1.2. The job application form;
7.2.1.3. The short listing process;
7.2.1.4. Interviews;
7.2.1.5. Job offers;
7.2.1.6. Record keeping; and
7.2.1.7. Reference checking.
7.3. POLICY AND PRACTICE
7.3.1. The recruitment process should be informed by the employer's employment
equity plan, including the recommended affirmative action provisions.
7.3.2. Employers should have written policies and practices that outline their
approach to recruitment and selection. This document should:
7.3.2.1. reflect the values and goals of the employer's employment equity policy
or ethos; and
7.3.2.2. include a statement relating to affirmative action and the employer's
intention to redress past inequalities.
7.3.3. Where an employer utilises the services of recruitment agencies, it should
make the recruitment agency aware of its employment equity policy.
Advertising positions
7.3.4. When advertising positions employers should refer to their employment equity
policy or values and indicate their position on affirmative action.
7.3.5. Job advertisements should place emphasis on suitability for the job, and
should accurately reflect the inherent or essential requirements (i.e. the core
functions) of the job and competency specifications.
7.3.6. Employers may consider placing all advertisements for positions internally
even if a job is being advertised externally. This will make current employees
aware of the opportunities that exist within the workplace.
7.3.7. When advertising positions, employers may state that preference will be
given to members of designated groups. However, this does not suggest that the
process of recruitment excludes members from non-designated groups.
7.3.8. Where possible, employers should place their job advertisements so that
it is accessible to groups that are under-represented.
7.3.8.1. Employees who are on maternity leave should be informed of positions
advertised in the workplace.
Job Application Forms
7.3.9. A job application form is a mechanism that is used by an employer as part
of selecting a suitable applicant for a position.
7.3.10. The purpose of a job application form is to:
7.3.10.1. standardise the information employers receive from job applicants. This
should reduce the probability for unfair discrimination;
7.3.10.2. ensure that the information received from job applicants focuses on
the requirements of the job and does not result in indirect unfair discrimination;
and
7.3.10.3. obtain biographical information to provide an employer with an easy
mechanism for monitoring applications from various designated groups.
Short-listing of Job Applicants
7.3.11. Short listing is a process in which an employer considers all applications,
including curriculum vitae and other relevant documents. An employer should place
those job applicants who meet the criteria on a shortlist.
7.3.12. The process of short-listing job applicants should be standardized. Where
no standards exist, an approach should be decided on before short- listing commences.
7.3.13. An employer should consider involving more than one person in the process
of short-listing applicants to minimize individual bias.
7.3.14. The short-listing panel should be balanced in terms representivity.
7.3.15. Where an employer has outsourced the short- listing process, every effort
must be made to ensure that the process is consistent with the recruitment and
selection policies of the employer.
7.3.16. An employer should not rely on second hand knowledge or assumptions about
the type of work the applicant may be able to do.
7.3.17. An employer should ensure that it short-lists as many suitably qualified
applicants from designated groups as possible.
7.3.18. Suitably qualified6 applicants must meet the essential job7 requirements.
7.3.19. When short-listing, an employer could include applicants from designated
groups who meet most but not all the minimum requirements. These applicants with
potential could be considered for development to meet all the job requirements
within a specified timeframe.
6 A suitably qualified person in the Act is defined as any one or any combination
of a person's formal qualification, prior learning; relevant experience or the
capacity to acquire within a reasonable time the ability to do the job.
7 An essential job requirement is the skills, knowledge or experience that are
necessary to perform a job.
Interviews
7.3.20. An interview is a selection tool that provides an employer with the opportunity
to meet a job applicant face-to-face.
7.3.21. Employers should use the same panel in the short-listing and interviewing
process.
7.3.22. Employers should provide training and guidance to the panel conducting
the interviews on:
7.3.22.1. interviewing skills;
7.3.22.2. the measuring system;
7.3.22.3. employment equity and affirmative action; and
7.3.22.4. matters relating to diversity, including skills for recognizing different
dimensions of merit.
7.3.23. Employers may develop a standard interview questionnaire. This is a questionnaire
prepared before the interview listing a set of questions that will be asked of
each applicant interviewed to determine the applicant's suitability for the job.
The interview questionnaire should be based on the job description, particularly
essential elements of the job and competency specifications. Employers should
regularly audit their interview questionnaires to ensure that they do not contain
questions that are potentially discriminatory.
7.3.24. An employer should consistently and objectively assess all applicants
interviewed using as a basis the job description, competency specification and
the measuring system. The same amount of time should be allocated for each candidate
and the same or similar questions should be asked.
7.3.25. The measuring system should be standardized. An employer must allocate
weightings to ensure that there is a balance between matching job requirements,
numerical targets and the needs of the employer.
Making the job offer
7.3.26. Employers should ensure that a realistic job preview is provided to ensure
that both the candidate and employer’s expectations are congruent. This
is to facilitate the retention of employees from designated groups by effectively
managing expectations before the candidate accepts a position, i.e. it must be
clear to the candidate on what their expectations are, lines of authority and
specific responsibilities;
7.3.27.Where a candidate does not accept a job offer, an employer should conduct
an "exit" type interview to establish the reasons for not accepting
the offer. This will enable the employer to identify and remove existing barriers.
Record keeping
7.3.28. An employer should keep copies of all documents relating to each stage
of the recruitment process for a reasonable period of time after the position
has been filled. These documents will be important in the case where an applicant
challenges the recruitment process and selection.
7.3.29. An employer may keep data on its recruitment processes to inform its employment
equity strategy and for monitoring changes in attitudes and actions of managers.
This information could include:
7.3.29.1. the demographic details of candidates who apply, those who are short
listed, interviewed and those who are made offers;
7.3.29.2. the demographic details of candidates in relation to short listing,
interviewing and job offers made in each department to establish which sections
within the workplace are advancing the employment equity profile of the employer.
The employer can then focus attention on those departments that are not successful
in advancing the employment equity objectives; and
7.3.29.3. the persons who were involved in the short listing, interview and job
offer process.
Reference checks of job applicants
7.3.30. The purpose of a reference check is to verify information provided by
an applicant during the selection process.
7.3.31. Reference checks should not be conducted in a manner that unfairly discriminates.
The same type of reference checks must be conducted on all short-listed applicants.
7.3.32. An employer should only conduct integrity checks, such as verifying
the qualifications of an applicant, contacting credit references and investigating
whether the applicant has a criminal record, if this is relevant to the requirements
of the job.
7.4.KEY LINKS TO OTHER TOPICS IN THE CODE
7.4.1. Implementing Employment Equity - Recruitment and selection must be aligned
to the employer's affirmative action strategy, as reflected in its Employment
Equity Plan, which sets out the detail in relation to the numerical targets for
each designated group by occupational categories and levels.
7.4.2. Disability - The employer should not unfairly discriminate on the ground
of disability. In the context of disability, there are specific recruitment and
selection issues that arise. In particular, an employer is required to make reasonable
accommodation for the needs of applicants with disabilities. Employers should
seek guidance from the Code of Good Practice on the Employment of People with
Disabilities and the Technical Assistance Guidelines on the Employment of People
with Disabilities.
7.4.3. Attraction and Retention - The ability of an employer to attract employees
from designated groups will depend on a combination of factors, which include
recruitment and selection practices, competitive benefits, career opportunities,
an affirming environment, reputation and image of the employer.
7.4.4. Assessments - Where an employer makes use of assessments during the selection
process, they should refer to the relevant section of this Code.
7.4.5. HIV and AIDS Status - An employer should not unfairly discriminate on the
ground of HIV and AIDS. Employers could use the Code of Good Practice on Key Aspects
of HIV/AIDS and Employment for guidance in this area.
8. INDUCTION
8.1. SCOPE Induction refers to the process where an employer
introduces a new employee. This includes familiarizing the new employee with the
vision, mission, values, job requirements and the policies and practices, as well
as colleagues and the workplace environment.
8.2. IMPACT ON EMPLOYMENT EQUITY A carefully planned and implemented
induction process will ensure that all new employees, and in particular designated
groups, are effectively integrated into the workplace from the commencement of
their employment. Proper induction can also function as a retention measure, since
an employee who is properly integrated is less likely to be marginalized and more
likely to thrive within the workplace.
8.3. POLICY AND PRACTICE
8.3.1. The induction process is an opportunity to convey the employer's expectations
and values and to indicate its commitment to equity and diversity. This can occur,
not only at the level of introducing the new employee to policies that prohibit
unfair discrimination, but also through ensuring that existing employees and leadership
demonstrate the necessary supportive behaviour toward all employees.
8.3.2. The induction process can be useful in demonstrating the leadership's commitment
to employment equity by creating an opportunity to send the appropriate message
about zero tolerance for harassment and discrimination, as well as support for
affirmative action. It can also serve to project senior role models from among
the designated groups already employed.
8.3.3. To ensure that the induction process contributes to the effective integration
of new employees from designated groups in the workplace, the employer could ensure
that managers and human resource staff receive training on the induction process.
Managers could also receive training on avoiding stereotypes or assumptions about
new employees based on their personal or physical or racial characteristics, ethnicity
or other arbitrary criteria.
8.3.4. During the induction process, new employees should receive copies of the
applicable policies. Such policies should include a grievance procedure and other
dispute resolution mechanisms. Reasonable accommodation should be made for employees
with disabilities.
8.4. KEY LINKS TO OTHER TOPICS IN THE CODE
8.4.1. Training and development and work assignment - Where gaps
have been identified during the interview, a training and development plan should
be prepared with the new employee and should be introduced during the induction
process
8.4.2. Elimination of barriers - A successful induction will
ensure that the employee does not experience barriers in socialising and networking,
which would inevitably impact on prospects for advancement. The integration of
employees from designated groups should be a conscious effort that extends beyond
the induction process.
8.4.3. Elimination of unfair discrimination - The employment
environment should be free from unfair discrimination and harassment and should
also promote a common understanding of what discrimination means and how it will
be dealt with.
8.4.4. Grievance & resolution - The grievance procedure should
be conducive to raising issues that arise in the induction process.
8.4.5. Performance Management - All new employees should be provided
with information of the work they are required to perform and the standard to
which this work must be produced.
9. PROBATION
9.1. SCOPE Probation involves the trial period for a new employee
where the Employer assesses the employee's ability and skills to function in the
position in order to determine whether to offer the employee a permanent position.
9.2. IMPACT ON EMPLOYMENT EQUITY The probation period can either
undermine or support an employee from a designated group. An employer should provide
the necessary organizational support to ensure that the new employee is successful.
An employer should consider the initial work allocation given to a probationary
employee to ensure that the new employee can cope with the demands of the new
workplace.
9.3. POLICY AND PRACTICE
9.3.1. An employer should ensure that probationary employees8 from designated
groups are not subjected to unfair discrimination. This can be done by ensuring
that managers treat them fairly and consistently. There should be a written probation
policy that clearly sets out the roles and responsibilities of the employee and
company policies and procedures. These could include the expected performance
standards; the frequency and form of performance reviews; the procedures the probationary
employee should comply with when raising problems or grievances; the nature of
support, mentoring and training and development.
9.3.2. An employer should ensure that managers understand the need for consistent
fair treatment of all probationary employees in order to avoid unfair discrimination
and perceptions.
9.3.3. Where an employee from a designated group requests reasonable accommodation
during the probationary period, the employer should, as much as possible, provide
it. Failure to provide reasonable accommodation may be construed as unfair discrimination.
9.3.4. Managers should, where relevant and appropriate, provide regular supervision
and guidance to probationary employees, including training and counseling, to
improve performance. Managers should keep records of their discussions with probationary
employees, as it may provide useful data about an employee's movement in the employment
equity planning and measurement process. Information used to make decisions about
employees should be reviewed, signed and dated by the employee. If the employer
has a human resources department, this department should be informed of issues
concerning the probationary employee’s performance.
9.3.5. By conducting an audit of policies and practices, an employer may identify
barriers in the probationary process that impact on designated groups. Strategies
to remove these barriers may then be developed and incorporated into the Employment
Equity Plan.
9.3.6. An employer may consider keeping a record of the number of employees from
designated groups who are not appointed at the end of their probationary period
and compare this to probationary employees from non-designated groups. This analysis
may indicate the existence of problems in a particular department or with a particular
manager. Corrective measures can then be undertaken. To the extent possible, exit
interviews may be conducted of probationary employees who are not appointed in
order to identify barriers in the process or perceptions of unfair discrimination.
Record keeping can facilitate measurement of employment equity progress and may
enable an employer to identify problems with retention of designated groups.
8 See Item 8 of Schedule 8 of the Labour Relations Act- The Code of Good Practice
on Dismissal
9.4. KEY LINKS TO OTHER TOPICS IN THE CODE
9.4.1. Induction - The links mentioned in the induction section are equally applicable
to probation.
9.4.2. Performance management - success during probation is often associated with
meeting the employer's clearly specified and objective performance standards according
to which regular evaluations of the employee 's performance are conducted.
9.4.3. Mentoring and Development - An employer may consider mentoring, coaching
and training interventions to support employees from designated groups during
the probationary period.
10. MEDICAL, PSYCHOLOGICAL AND OTHER SIMILAR ASSESSMENTS9
10.1. SCOPE Appropriate medical, psychological and other similar
assessments, if properly used by employers, could contribute positively toward
the recruitment and development of suitably qualified applicants and employees.
Assessments, whether medical, psychological or other similar assessments, should
include rather than exclude individuals with potential and those suitably qualified.
10.2. IMPACT ON EMPLOYMENT EQUITY
10.2.1. The Act prohibits medical testing, unless legislation permits or requires
the testing; or it is justifiable in the light of medical facts, employment conditions,
social policy, the fair distribution of employee benefits or the inherent requirements
of the job. Psychological and similar assessments are also prohibited by the Act,
unless the assessment being used has been scientifically shown to be valid and
reliable; can be applied fairly to all employees; and is not biased against any
employee or group. Assessments are required to be free from unfair discrimination
based on the prohibited grounds. Tests that directly or indirectly unfairly discriminate
on these grounds are inappropriate and should be avoided.
10.2.2. An assessment is seen to be directly unfairly discriminatory when it excludes
employees from designated groups on the basis of one or more of the prohibited
grounds. Indirect unfair discrimination, however, is the more likely outcome.
This occurs when, on average, the majority of a particular group assessed scores
below the minimum requirement compared to other groups or individuals.
9 Medical, psychological and other similar assessments are also covered in
Section 7 of the Employment Equity Act as well as the Code of Good Practice on
Key Aspects of HIV/AIDS and Employment and in the Code of Good Practice the Employment
of People with Disabilities.
10.2.3. Assessments should be used to identify candidates with potential and persons
who are suitably qualified. These assessments should then be followed-up by relevant
intervention measures like appropriate training and development.
10.3. POLICY AND PRACTICE
10.3.1. An employer who uses medical, psychological and other similar assessments
should develop a written policy for the workplace, which identifies the purpose,
context, methods and criteria applicable to selecting and conducting assessments.
10.3.2. An employer should ensure that assessments used are valid, reliable and
fair10, so that no group or individual is unfairly disadvantaged as a result of
the assessment. Bias in the application of the assessment should be eliminated.
The test should match the job in question and should measure the minimum level
of the competencies required to perform the job, which must be based on the inherent
requirements or essential functions of the relevant job. Tests should avoid arbitrary
or irrelevant questions. Only assessments that have been professionally validated
as reliable predictors of performance for a particular job, irrespective of race
gender or disability, should be used.
10.3.3. Administrators and users of medical, psychological and other similar assessments
should be qualified and registered with the appropriate recognised professional
body of South Africa. Assessors should be trained to understand, evaluate and
interpret the evidence or outcomes of the assessment objectively against the skills
and abilities required for the job and must be able to justify their decisions.
The assessment process should also minimize the opportunity for assessors to make
subjective or arbitrary judgments that could, deliberately or inadvertently, work
to the advantage of one group over another. Assessors should make sure they assess
against the competencies for the job.
10.3.4. Special care should be taken to ensure that the language used is sensitive
and accessible to those who are being assessed.
10.3.5. All employees or applicants for a particular job should be assessed against
the same criteria. The process should make accommodation for diversity and special
needs.
10.3.6. An employer should keep assessment records for at least one year11
10.3.7. Employers should ensure that reasonable accommodation is made for employees
or applicants where required, and that unfair discrimination does not occur in
the arrangements for the administering of tests or in using assessment centres12.
10 Validity is the extent to which a test measures what it is intended to
measure and indicates the degree of accuracy of either predictions or inferences
based upon the test score. Reliability is the extent to which a test is dependable,
stable and consistent when administered to the same individuals on different occasions.
Fairness relates to how the results of the assessments are applied: it is the
total of all the variables that play a role or influence the final decision of
an employer. This can include the assessment, integration of data, recommendations
based on these data or the final decision made by the employer.
11 Psychological assessment are valid for 1 year
10.4. KEY LINKS TO OTHER TOPICS IN THE CODE
10.4.1. Skills development - Assessments can be used to identify potential amongst
employees or applicants from designated groups. This links to affirmative action
in training and development. Enabling an individual access to specific training
and development programmes, or any other relevant intervention can eliminate skills
and competency gaps identified in an employee.
PART B: DURING EMPLOYMENT
11. TERMS AND CONDITIONS OF EMPLOYMENT
11.1. SCOPE This section of the Code deals with terms and conditions
of employment including working time and rest periods, leave of all kinds13, rates
of pay, overtime rates allowances, retirement schemes, medical aid and other benefits.
11.2. IMPACT ON EMPLOYMENT EQUITY
11.2.1. An employer may not discriminate unfairly in the terms and conditions
of work or access to benefits, facilities or services that are available to employees.
11.2.2. Eligibility for benefits should not be determined on the basis of one
or more of the prohibited grounds or other arbitrary grounds.
11.3. POLICY AND PRACTICE
11.3.1. Every employer is required by the Act to audit its terms and conditions
of employment to identify whether they contain any unfair direct or indirect discrimination
policies and practices. This should be followed by monitoring all changes in the
terms and conditions of employment to ensure that all barriers or unfair discrimination
policies and practices are removed. An employer should also regularly conduct
practice audits to test the perceptions of employees about whether its terms and
conditions of employment and practices are non-discriminatory. An employer may
address deficiencies identified through appropriate awareness raising initiatives
and other barrier removal mechanisms. These should form a component of the employer's
Employment Equity Plan.
12 For example, the dates or times for the test coincide with religious festivals
or observances, or the employer does not take into account dietary preferences
or cultural norms that could cause disadvantage; or where the facilities used
are inappropriate (for example the assessment centre is on the first floor of
a building with no elevator and the employee or job applicant is in a wheelchair).
13 Leave includes annual leave, sick leave, maternity leave and family responsibility
leave or any other types of leave.
11.3.2. Employers should provide training, information and literature to trade
union representatives and employees on the applicable terms, conditions and available
benefits.
11.3.3. Maternity leave should not result in the loss of benefits for employees
upon return to employment.
11.3.4. An employer should provide reasonable accommodation for pregnant women
and parents with young children, including health and safety adjustments and antenatal
care leave.
11.3.5. Employers should endeavour to provide an accessible, supportive and flexible
environment for employees with family responsibilities. This includes considering
flexible working hours and granting sufficient family responsibility leave for
both parents.
11.3.6. Employers should examine the use of terms and conditions of their fixed
term contract employees14 to ensure that they are not unfairly discriminated against.
Fixed-term-contracts can potentially undermine employment equity. This may occur
where the employer tends to appoint certain groups of employees (i.e. black people,
lower level employees and women) to fixed term contracts as a matter of practice.
11.4. KEY LINKS TO OTHER TOPICS IN THE CODE
11.4.1. Remuneration - An employer must provide equal pay for
equal work or for work of equal value.
11.4.2. Retention - Favourable terms and conditions of employment
for employees can serve as an affirmative action measure to promote, attract and
retain individuals from designated groups, but should be used with caution as
a justified affirmative action measure.
11.4.3. Working environment - Flexibility in the terms and conditions
of employment (i.e. working hours and schedules, work from home options, job sharing,
career breaks, etc.) are examples of a flexible working environment that may promote
the retention of employees, particularly members from designated groups.
12. REMUNERATION
14 A fixed term contract employee' is a person who is employed on a contract
that includes an agreement detailing the relationship between the employer and
employee, which is determined by an objective condition that creates no false
expectations of renewal of the contract, and is based on a specific duration or
time frame with dates or the completing of a specific task or happening or event.
12.1. SCOPE Remuneration is any payment in money or in kind,
or both in money and in kind, made or owing to any person in return for services
rendered15. Employers must ensure that remuneration policies and practices are
applied consistently without unfair discrimination on the basis of any one or
combination of the prohibited grounds.
12.2. IMPACT ON EMPLOYMENT EQUITY
12.2.1. Remuneration differentials most commonly constitute direct unfair discrimination,
where an employer pays designated employees less than non-designated employees
doing the same or equivalent work simply because they are designated employees.
Remuneration discrimination can also be indirect or systemic because it stems
from remuneration policies and practices that have an adverse or disparate impact
on black people, women and people with disabilities.
12.3. POLICY AND PRACTICE
12.3.1. Employers should audit their existing remuneration policies to ensure
that they are based on the principles of pay equity. This requires a comparison
of jobs as well as a job evaluation system that is objective rational and applied
consistently to all job functions. It is recommended that all employers consider
developing a written remuneration policy, or at the very least written guidelines,
to ensure that clear rules exist on how remuneration is determined. This should
be communicated in an appropriate format to all employees.
12.3.2. Employers should conduct regular audits of their remuneration practices
among employees to identify the lack of awareness about applicable criteria and
perceptions of unfair discrimination in remuneration.
12.3.3. Where barriers or discrimination in remuneration are identified, and unless
these can be justified, the employer should in consultation with stakeholders
develop a strategy for barrier removal.
12.3.4. Job evaluation systems should be objective as these are often the basis
on which remuneration differentials emerge.
12.3.5. Remuneration should be based on the value of the post. In this regard,
the following factors may be taken into account:
12.3.5.1. Performance and Outputs: the employee's outputs, measured by the performance
management process, should carry the most weight in determining individual remuneration
levels.
12.3.5.2. Employee potential: This involves estimated ability and competence,
as well as the capacity to develop these over time. Estimated ability refers to
conceptual and management skills which have not yet been demonstrated, whilst
competence refers to knowledge and expertise gained, which can be informed by
previous outputs or experience.
15 The meaning of remuneration in relation to leave pay, notice pay and severance
pay is clarified by the Determination issued by the Minister of Labour in terms
of Section 35 of the Basic Conditions of Employment Act. 12.3.6. Employers should
monitor income differentials to ensure that these do not contribute to unfair
discrimination.
12.4. KEY LINKS TO OTHER TOPICS IN THE CODE
12.4.1. Performance Management - Although indirect factors such
as motivation and commitment may be considered, it is important to ensure that
these are free of unfair discrimination.
12.4.2. Recruitment and Selection - In order to attract employees
from designated groups, an employer should offer market related salaries and benefits.
13. JOB ASSIGNMENTS
13.1. SCOPE Job assignments relate to the type of work that is
allocated to an employee by their employer. An employer should make decisions
on the allocation of job assignments on objective criteria.
13.2. IMPACT ON EMPLOYMENT EQUITY Unfair direct and indirect
discrimination often occur as a result of the way in which work is allocated in
a workplace. Where job assignments are based on prohibited grounds or arbitrary
characteristics, this may perpetuate unfair discrimination and may result in undermining
employment equity. Discrimination in job assignments may occur where there is
informal mentoring by a manager who is perceived to favour a particular employee.
13.3. POLICY AND PRACTICE
13.3.1. As part of the policy and practices audit, an employer should identify
whether any unfair discrimination occurs in the ability of all employees to access
opportunities.
13.3.2. Employers should guard against conduct that perpetuates perceptions of
favouritism, which could lead to allegations of unfair discrimination. Access
to opportunities should occur on an objective and fair basis to ensure that such
perceptions do not arise, and where they do arise, they should be dealt with effectively
and expeditiously.
13.3.3. Employers should also monitor behaviour of managers in allocating job
assignments, particularly where certain trends can be determined, as these may
indicate the existence of indirect unfair discrimination.
13.4. KEY LINKS TO OTHER TOPICS IN THE CODE
13.4.1. Induction - An employer should explain, especially during
the induction process, the policies or guidelines that apply in relation to how
work or opportunities are allocated.
13.4.2. Job analysis and job descriptions - A clear job description
could ensure that no unrealistic expectations are raised regarding access to opportunities.
13.4.3. Performance management - Access to work assignments that
enhance career opportunities, or are considered to be desirable, should be allocated
objectively by linking them to the career path of employees. These should be clearly
communicated to employees to ensure that no misperceptions arise and to prevent
allegations of unfair discrimination.
13.4.4. Retention - In some instances, allowing certain employees
access to work related opportunities that are considered to be "exciting"
could be used as a retention measure - i.e. where an employer gives preference
to senior managers from designated groups in allocating these opportunities. This
should be used with caution as it can have significant organizational implications
and can cause resentment where the objectives of such a strategy are not clearly
understood or communicated.
13.4.5. Skills development - Access to opportunities and work
assignments should form part of an employee's development plan and an employer's
Workplace Skills Plan.
14. PERFORMANCE MANAGEMENT
14.1. SCOPE Performance management is a business process that
is used to monitor, measure and link what employees do on a continuous basis with
the goals, values, culture and business objectives of the employer. It is a process
intended to establish a shared understanding about what is to be achieved; how
it is to be achieved; and the implications where it is not achieved. This includes
clarifying the expectations that the employer has of the employee. Performance
management also involves the training and development of employees.
14.2. IMPACT ON EMPLOYMENT EQUITY
14.2.1. Discrimination in work assignments and performance measurement is more
difficult to detect and difficult to prove without an objective, written system
that clearly expresses criteria according to which performance will be measured
and managed.
14.2.2. The manner in which the performance of an employee is managed may impact
on the value that the employee adds to the workplace. It may also impact on how
peers perceive the performance and advancement of an employee and on the support
received by that employee. Performance management should not be a punitive process,
but rather one that facilitates setting clear objectives for development and growth.
Providing opportunities for development for employees from designated groups is
a critical challenge for many employers.
14.3. POLICY AND PRACTICE
14.3.1. In order to effectively manage performance in a non- discriminatory and
fair manner that encourages development, an employer should ensure that managers:
14.3.1.1. receive coaching and diversity training to ensure that they are able
to objectively and consistently manage performance and provide honest feedback
whilst being sensitive to employee differences;
14.3.1.2. understand and are able to properly implement the performance management
system; and
14.3.1.3. are able to provide the necessary coaching, mentoring and support to
employees to motivate them towards performance excellence. 14.3.2. Performance
management systems could in addition:
14.3.2.1. Measure and incentives managers for their leadership, mentoring and
diversity skills, as well as for achieving employment equity objectives;
14.3.2.2. Incorporate review processes, which may apply measures relating to competencies
of managers in diversity management, including feedback from employees and peers;
14.3.2.3. Develop clear learning objectives for all employees, particularly from
designated groups. This should link to the acquisition of additional skills and
competencies for challenging positions into which employees may be promoted or
transferred; and
14.3.2.4. Ensure that the performance management system is linked to the inherent
requirements of the job and is free of any unfair discrimination.
14.3.3. Employers should review the results of performance appraisals to assess
if there are any significant variations across designated groups. Where such variations
exist, employers should identify the reasons for these discrepancies and take
action to remove them.
14.4. KEY LINKS TO OTHER TOPICS IN THE CODE
14.4.1. Working environment - a consistent and sustained performance
management culture may impact on the integration and retention of employees from
designated groups. It may also have implications for issues that go beyond performance
and productivity, e.g. elevating employee morale, which in turn leads to productive
employees and a more enabling workplace.
14.4.2. Remuneration - because performance management is linked
to reward, it would be useful for employers to conduct an analysis of the distribution
of increases and/or bonuses paid to employees that can be attributed to performance
outcomes. This will enable the identification of areas of potential unfair discrimination
and ensure that action is taken to eliminate barriers.
14.4.3. Skills development - effective and regular performance
management may facilitate the identification of training and development needs,
which may be addressed through appropriate interventions. These will enable an
employee to effectively perform in the existing position or to develop into a
more challenging position.
14.4.4. Retention - If performance management is linked to employee
development and growth, it will impact significantly on an employer's ability
to retain its employees.
15. SKILLS DEVELOPMENT
15.1. SCOPE
15.1.1. The Skills Development Act and the Skills Development Levies Act provide
reinforcing and supporting tools for developing employees in line with employer
business objectives. This contributes to a critical pool of candidates from designated
groups from which employers could recruit, thus facilitating accomplishment of
Employment Equity Act objectives.
15.1.2. This section describes the areas that impact on an employer's ability
to develop employees from designated groups, which includes:
15.1.2.1. effectively identifying training needs and matching these with the needs
of the employer;
15.1.2.2. providing effective mentoring and coaching;
15.1.2.3. providing structured on-the-job training;
15.1.2.4. considering accelerated development for employees with potential;
15.1.2.5. providing meaningful job roles;
15.1.2.6. implementing individual development plans;
15.1.2.7. providing access to opportunities to act in a higher position;
15.1.2.8. providing shadowing16 opportunities;
15.1.2.9. creating challenging work assignments; and
15.1.2.10. developing and promoting positive role models for designated groups.
15.1.3. The section also deals with the retraining of managers and supervisors
to enable them to effectively manage a diverse workforce.
15.2. IMPACT ON EMPLOYMENT EQUITY Skills development of employees
is a key driver for the achievement of employment equity objectives. The Act positions
skills development of designated groups as an affirmative action measure. Development
and training are key strategies to enable designated groups to advance and to
reach equitable representation in all occupational categories and levels.
15.3. POLICY AND PRACTICE
15.3.1. Every employer should develop written policies and practices to reflect
its commitment to training and development. These policies and practices should
refer to the objective of encouraging the training of employees while prioritising
designated groups. The policy may incorporate preference in access to training
and development opportunities for designated groups; until their representation
in all occupational categories and levels has reached critical mass. This policy
may then form the basis for the Workplace Skills Plan.
15.3.2. Employers should assist employees to identify and address their skills
gaps by formulating appropriate objectives in their personal development plans,
agreeing to timeframes and accessing the resources required to meet these objectives.
15.3.3. Employers and employees should also strive to create an organizational
culture that encourages and rewards learning for everyone in the workplace. An
employer may achieve these objectives through:
15.3.3.1. appropriately structured career breaks;
15.3.3.2. bursary schemes;
15.3.3.3. on the job learning;
16 A person following and observing another in order to gain experience or insight
into a job.
15.3.3.4. mentoring and coaching.
15.3.3.5. employee counseling for growth and advancement; and
15.3.3.6. access to literacy and numeracy programmes.
15.3.4. The competency requirements far senior managers, team leaders, line managers,
supervisors and professional staff should include specifications related to the
development of employees.
15.3.5. Employers should consider conducting leadership and management development
programmes to ensure that leaders and managers have the necessary knowledge and
skills to effectively manage, develop and empower employees. Every effort should
be made to create a work climate that is conducive to the successful integration
and retention of employees from designated groups.
15.3.6. Employers should communicate their training and development priorities
to all senior and line managers responsible for performance management. An employer
should use these requirements to guide the identification of potential individuals
in a proactive manner and identify individuals who can be scheduled for training
and development.
15.3.7. All formal training offered to employees, whether through in-house training
or from an external training provider, should ideally be linked to unit standards
or qualifications that are registered on the National Qualifications Framework.
This ensures that employees are able to receive nationally recognised credits
and certificates for their learning achievements. This may redress past imbalances
in formal education opportunities for people from designated groups.
15.3.8. Where employers consider implementing the Recognition of Prior Learning
(RPL) principles to redress historical education and training disadvantages to
promote employment equity and validate employee skills and knowledge, this should
be based on an employer specific RPL policy.17
15.3.9. Where applicable, employers should consider implementing Learnerships18
to offer occupationally driven, outcomes based learning while creating employment
opportunities for previously disadvantaged individuals.
15.3.10. In procuring formal training courses from internal or external providers,
employers should take into account the equity profile of the provider.
15.3.11. In procuring formal training courses from external providers, employers
should ideally offer preference to suitable Black Economically Empowered companies
in support of the development and sustainability of Black Economic Empowerment
initiatives.
17 RPL as defined by South African Qualifications Authority (SAQA); is a process
whereby people's prior learning can be formally recognized in terms of registered
qualifications and unit standards; regardless of where and how the learning was
attained. RPL acknowledges that people never stop learning, whether it takes place
formally at an educational institution, or whether it happens informally.
18 Learnerships are created in terms of the Skills Development Act, No. 97 of
1998 (Chapter 4, Sections 16 to 19).
15.3.12. Employers, particularly those whose workforces include employees who
are not functionally literate, should consider offering Adult Basic Education
and Training (ABET) opportunities.
15.3.13. An employer's employment equity policy or policies should be a standard
component of all training and development courses to ensure that employees understand
its philosophy in relation to the workplace.
15.3.14. An employer should offer diversity training to ail employees.
15.3.15. Staff responsible for selecting employees for training, either as part
of their induction or to develop particular skills, should themselves be trained
to:
15.3.15.1. recognise potential, particularly from designated group employees;
15.3.15.2. select trainees according to objective criteria or in terms of the
Workplace Skills Plan or training and development policy;
15.3.15.3. align training and development access for designated groups to numerical
targets and other objectives set in the Employment Equity Plan; and
15.3.15.4. identify and address any barriers or unfair discrimination practices
in the allocation of training opportunities.
15.3.16. An employer should monitor training opportunities in order to identify
and address any disparities between groups and to ensure that training is done
to achieve the employment equity objectives set out in its Employment Equity Plan.
15.3.17. An employer should conduct post training impact evaluations to track
the progress of employees to ensure that training employment equity objectives
are met.
15.4. KEY LINKS TO OTHER TOPICS IN THE CODE
15.4.1. Implementing employment equity - Employees from designated
groups who are provided with effective training and development interventions
are likely to perform better. This may contribute towards improved workplace performance
and may increase the profile of employees from designated groups.
15.4.2. Performance management - The performance management system
should include the measurement of line managers and supervisors in relation to
the contribution they make to the skills development of employees.
15.4.3. Promotion - Effective training and development of employees
from designated groups may enhance their skills and knowledge and ultimately their
chances for career advancement.
16. PROMOTION AND TRANSFER
16.1. SCOPE Promotions and transfers are processes that facilitate
employee mobility for various purposes, including career development, succession
planning and operational requirements. This should facilitate representation of
members of designated groups in all occupational categories and levels, thus meeting
employment equity objectives.
16.2. IMPACT ON EMPLOYMENT EQUITY Promotions and transfers have
the potential to impact on numerical goals and accelerate equitable representation
of all groups in occupational categories and levels within a workplace. These
initiatives are key drivers for employment equity in that they can involve fast
tracking the advancement towards achieving numerical targets.
16.3. POLICY AND PRACTICE
16.3.1. Employers are prohibited from unfair discrimination in promotion and transfer
decisions. One of the mechanisms for eliminating unfair discrimination is to ensure
that written policies and practices specify the criteria, which apply to promotions
and transfers. Managers implementing the policies and practices should be monitored
to ensure that they are not applying these inconsistently.
16.3.2. An employer may implement a policy of preference toward members of designated
groups in transfers and promotions as a legitimate affirmative action measure.
16.3.3. Lateral transfers to equivalent positions may be effectively used to achieve
employment equity targets. Reasonable provision must be made where an employee
requests a transfer.
16.4. KEY LINKS TO OTHER TOPICS IN THE CODE
16.4.1. Retention - Promotions and transfers may contribute to
retention, specifically in instances where employees from designated groups do
not feel sufficiently challenged or rewarded in an existing position.
16.4.2. Skills Development - Linking promotions and transfers
to development and growth opportunities for designated groups will ensure that
they do not occur in isolation from numerical targets and employment equity objectives.
16.4.3. Remuneration - Linking promotions and transfers to remuneration
may encourage employees to transfer to a less popular operational or geographic
area.
17. CONFIDENTIALITY AND DISCLOSURE OF INFORMATION
17.1. SCOPE
17.1.1. This section deals with information employees are entitled to obtain from
their employers and information employers may disclose about their employees.
17.1.2. The relevant provisions of Section 16 of the Labour Relations Act, 1995,
apply to the disclosure of information in terms of this part of the Code, in addition
to any other laws, including the Regulation of Interception of Communications
and Communication- Related Information Act, 2002 and the Promotion of Access to
Information Act, 2000.
17.2. IMPACT ON EMPLOYMENT EQUITY
17.2.1. When engaging in employment equity consultation, the Act requires that
designated employers disclose to consulting parties all relevant information.
17.2.2. The object of disclosure is to make the process of consultation as participative
and as meaningful as possible to ensure good faith engagement and to develop trust
between employers and employees.
17.2.3. Timeous disclosure of information will facilitate consensus regarding
appropriate employment equity initiatives to reduce challenges.
17.2.4. An employer must disclose information that is relevant and that is reasonably
required by the consulting parties to engage effectively on employment equity.
17.2.5. Information is generally considered to be relevant if it is likely to
influence the formulation, presentation or pursuance of a position or demand proposed
by a consulting party in their deliberations on employment equity.
17.3. POLICY AND PRACTICE
Type of information
17.3.1. The employer can comply with many of these requirements by referring the
consulting parties to the documents that contain the necessary information if
they are reasonably accessible to such consulting parties.
17.3.2. Information should be supplied in a manner and format that are accessible
to all employees in the workplace.
Confidentiality and Disclosure
17.3.3. Private, personal information is regarded as confidential information.
It will include information that may be typically found in an employee's personnel
file. This may include information concerning the employee's financial circumstances,
marital circumstances, criminal record or health status (e.g. HIV and AIDS, alcoholism,
etc.). The employer may not disclose this kind of information unless the employee
consents in writing.
Collection and communication of employee data: Balancing the need for
information against the right to privacy
17.3.4. Information is collected on employees from the time when they are job
applicants. The collection and disclosure of information may in some circumstances
violate the right to privacy. It is therefore important for employers to balance
the need for requiring certain information against the need to maintain high standards
of personal privacy and the confidences of third parties.
17.3.5. An employer should not collect personal information from employees, unless
- 17.3.5.1. The information is collected for a lawful purpose that is directly
related and necessary to implement employment equity in the workplace, e.g. for
making recruitment, development and promotion decisions; and
17.3.5.2. The information is reasonably necessary for that purpose.
17.3.6. An employer may not collect personal data regarding an employee's sex
life, political, religious or other beliefs, or criminal convictions, except in
exceptional circumstances where such information may be directly relevant to an
employment decision.
Security of disclosed information
17.3.7. Information collected on employees, such as race, gender, sexual orientation,
religion, performance, training records, psychological assessments or health,
or any other information imparted by employees to their employer, should be kept
secure and only those entitled to see it in the course of their duties should
have access.
17.3.8. For governance purposes, employers should ideally have a written security
policy for the gathering and disclosure of information. Employers should keep
a written record of the names of those, whether internal or external to the employer,
to whom employee information has been revealed and for what purpose.
Employee rights
17.3.9. Employees should be afforded opportunities of checking the accuracy of
their information and rectifying and updating it, particularly where it relates
to employment equity.
17.3.10. Employees can insist on the rectification or deletion of incorrect or
misleading information. Where information is corrected, those Alterations should
be communicated to subsequent users of the information.
17.4. KEY LINKS TO OTHER TOPICS IN THE CODE
17.4.1. Employment equity implementation - The disclosure of
information by an employer must occur within the context of an employer's employment
equity policies. Disclosure of information is a necessary pre- requisite to meaningful
consultation by parties, as required under the Act.
17.4.2. Recruitment and Selection - Information about employees,
which is collected by an employer during the recruitment process or during employment,
must be collected for a lawful purpose and must be directly related to the function
or job requirement.
17.4.3. Assessments - An employee's manager, with the assistance
of an expert in testing, should only consider psychological assessments of an
employee if the assessments are current.
18. RETENTION SCOPE The retention of all employees, specifically
employees from designated groups, is a key challenge for employers given the opportunities
for mobility that exist in the global economy. This section identifies some challenges
and their implications for implementing employment equity to retain employees
from designated groups.
IMPACT ON EMPLOYMENT EQUITY Retention of employees from designated
groups is critical for achieving and sustaining numerical targets and goals as
envisaged in the Act. Employers who seek to retain their talented and skilled
employees, particularly those from designated groups, should develop and implement
retention strategies.
18.1. POLICY AND PRACTICE
18.1.1. Employers may consider identifying trends that exist in their workplaces
regarding the reasons for termination. This will enable employers to develop appropriate
strategies to retain employees, particularly employees from designated groups.
These strategies should be directed at removing barriers that cause termination
of employment.
18.1.2. Employers may consider negotiating retrenchment criteria that deviate
from the "last in first out" principle, where the implementation of
this principle will detrimentally affect the representivity of designated groups
in that workplace.
18.1.3. Employers could also implement various incentives to promote retention.
18.2. KEY LINKS TO OTHER TOPICS IN THE CODE
18.2.1. Induction - An effective induction process should be
implemented to integrate employees, particularly those from designated groups,
into the workplace.
18.2.2. Terms and conditions of employment - Equitable and favourable
terms and conditions of employment as well as an environment that affirms diversity
contribute to long-term employee retention.
18.2.3. Skills development - Providing equitable training and
development opportunities contribute towards employee retention, especially if
this is linked to career development.
18.2.4. Remuneration - fair remuneration contributes to the retention
of employees.
18.2.5. Performance Management and Reward - Recognising and rewarding
good performance may contribute to retention.
18.2.6. Termination - An exit interview may provide information
on the reasons for employee turnover.
19. HARASSMENT
19.1. SCOPE This section deals with the elimination of harassment
in the workplace. It provides a framework for facilitating and promoting the development
and implementation of policies and practices that result in workplaces free of
harassment where employers, employees and associated parties19 put a premium on
one another's integrity and dignity. This in turn builds a workforce that respects
one another's privacy and the right to equity and equality in the workplace.
19.2. IMPACT ON EMPLOYMENT EQUITY
19.2.1. Section 6 of the Act and other related legislation recognize that harassment
in the workplace, whether direct or indirect, is a form of unfair discrimination
and is prohibited on one or a combination of the following grounds: Race, gender,
sex, pregnancy, marital status, family responsibility, ethnic or social origin,
colour, sexual orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language and birth.
19 Associated parties may include suppliers and contractors.
19.2.2. Harassment is unwanted or unsolicited attention based on one or more of
the prohibited grounds. It involves conduct that is unwanted by the person to
whom it is directed and who experiences the negative consequences of that conduct.
The conduct can be physical, verbal or non-verbal. It affects the dignity of the
affected person or creates a hostile working environment. It often contains an
element of coercion or abuse of power by the harasser.
19.3. POLICY AND PRACTICE 19.3.1. Every employer is under obligation
in terms of the Act to take steps to prevent workplace harassment. This includes
ensuring that a clear rule prohibiting harassment and other forms of unfair discrimination
that exits in the workplace, and that all employees understand it. This should
be incorporated in a formal written policy like a code of conduct with an appropriate
dispute resolution procedure that is communicated throughout the workplace and
displayed in prominent places.
19.3.2. The policy should make it clear that harassment is a form of unfair discrimination,
and will be regarded by the employer as a serious form of misconduct, which will
be subjected to disciplinary action and may result in dismissal.
19.3.3. On an incremental scale of "minor", "serious" and
"very serious", harassment is a very serious offence. The disciplinary
code of an employer should provide for very serious offences like harassment by
placing a waiver on all warning procedures, and moving directly to a disciplinary
enquiry that could be followed by a hearing.
19.4. KEY LINKS TO OTHER TOPICS IN THE CODE
19.4.1. Recruitment & Selection - Applicants for a job are
normally most vulnerable to harassment in exchange for special favours. Therefore
special attention should be placed on behaviour that is likely to be interpreted
as harassment.
19.4.2. Promotion & Transfer - Mechanisms should be put in
place to prevent `welcome' or `unwelcome' harassment that could be seen as influencing
promotion and transfer decisions.
19.4.3. Discipline, Grievance & Dispute Resolution –
Appropriate policies and procedures, which promote appropriate behaviour and serves
as a guard against harassment, should be developed and implemented by employers.
20. DISCIPLINE, GRIEVANCE AND DISPUTE RESOLUTION20 This section
of the Code is based on the principle that employers and employees should treat
each other with mutual respect. To this end, the Code seeks to balance the right
of employees to fair employment practices against the right of employers to expect
satisfactory conduct and performance by employees.
20 Schedule 8 of the Labour Relations Act, which includes the Code of Good
Practice on Dismissal deals with some of the key aspects of dismissals for reasons
related to conduct and capacity. The Code of Good Practice on Dismissal also deals
with termination based on operational requirements.
20.1. SCOPE
20.1.1. This section deals with issues employers may consider when managing grievances
filed by employees or disciplining employees for transgressing workplace policies
and practices.
20.2. IMPACT ON EMPLOYMENT EQUITY
20.2.1. The manner in which discipline and grievance are managed can generate
conflict in a workplace and may undermine employment equity achievements and policies.
Employers should ensure that their disciplinary and grievance policies are consistently
and impartially applied.
20.2.2. This section of the Code is not intended to serve as a substitute for
grievance or disciplinary procedures concluded at a workplace. An employer should
evaluate whether their existing grievance, discipline and dispute resolution procedures
are conducive to dealing with unfair discrimination and harassment.
20.3. POLICY AND PRACTICE The Grievance Process
20.3.1. Unfair discrimination or allegations of a breach of the Act should be
dealt with as quickly and as thoroughly as possible. Conflict is best managed
if addressed expeditiously and according to fair and impartial principles.
20.3.2. Employers should endeavour to protect complainants and ensure that complaints
and grievances lodged are dealt with sensitively and discretely.
20.3.3. Employers should take disciplinary action against any employee who retaliates
against a fellow employee for using the grievance procedure to address a concern
or grievance concerning an alleged act of harassment, unfair discrimination or
a breach of the Act.
20.3.4. Employers should consider workplace policies that make any act of unfair
discrimination or breach of the Act a form of very serious misconduct.
20.3.5. Employers should ensure that employees are aware of or can reasonably
be expected to be aware of workplace policies and practices, particularly in relation
to unfair discrimination.
20.3.6. Employers are responsible for ensuring the consistent application and
enforcement of policies to avoid allegations of arbitrary or unfair application
of discipline on the basis of one or more of the prohibited grounds. Policies
on discipline must apply equally to all employees.
20.3.7. Disciplinary action should seek to correct an employee's behaviour. Disciplinary
measures may include counseling, warnings or creative solutions. The primary aim
of discipline should be to encourage a culture of respect for difference and dignity.
20.3.8. Employers should value and encourage greater awareness of diversity.
20.3.9. Employers should keep a record of all grievances, disputes and disciplinary
actions taken and conduct regular audits to determine the extent to which:
20.3.9.1. employees have utilised the procedures. This information should be disaggregated
by race, gender and disability;
20.3.9.2. the grievances filed by employees where breaches of the Act are alleged;
and
20.3.9.3. the outcome of processes.
20.3.10. Employers may use the outcome of this review to assess whether its policies
are being utilised and whether they are being used to address grievances and disputes
that arise in the workplace in relation to unfair discriminatory practices or
any other breaches of the Act.
20.4. KEY LINKS TO OTHER TOPICS IN THE CODE
20.4.1. Working environment - Conflict is inherent in workplaces.
Employers need to manage the manifestations of conflict in a manner that discourages
unfair discrimination.
20.4.2. Harassment - Employees must be made aware that harassment
is serious misconduct, and it will be dealt with effectively and efficiently.
PART C: ENDING EMPLOYMENT
21. TERMINATING EMPLOYMENT
21.1. SCOPE An employer may terminate the employment of an employee by agreement
or for reasons based on misconduct, incapacity or for operational requirements.
This section outlines some of the key employment equity considerations in ensuring
that employment is terminated in a fair and consistent manner.
21.2. IMPACT ON EMPLOYMENT EQUITY
21.2.1. Terminations should be fairly and lawfully effected and must serve the
purposes of the employer without discriminating against any employee.
21.2.2. In the context of termination for operational requirements, an employer,
when consulting with the affected party, should consider the appropriateness of
adopting the standard selection criteria of Last In First Out (LIFO) as this may
undermine the retention of designated groups. In the context of employment equity,
traditional criteria may undermine the progress made to achieve numerical targets
and would need to be revisited to ensure that they support the achievement of
employment equity objectives.
21.3. POLICY AND PRACTICE
21.3.1. In order to achieve numerical targets, employers may initiate voluntary
exit strategies to make space for designated groups. This strategy should be preceded
by consultation in order for it to be accepted as a legitimate affirmative action
measure. It should be transparent and effectively communicated to those existing
incumbents who may be affected. Employers should be guided by the long-term viability
and sustainability of institutional knowledge in making the decisions to use voluntary
exits of non- designated groups, as a strategy to achieve numerical targets. An
employer should implement this strategy in tandem with skills development, career
development and succession planning to ensure that skills that are core to the
employer are replaced.
21.3.2. When terminating the employment of an employee for reasons of incapacity
based on disability or chronic illness, employers should refer to the Code of
Good Practice on Key Aspects of HIV/AIDS and Employment and the Code of Good Practice
on the Employment of People with Disabilities.
21.4. KEY LINKS TO OTHER TOPICS IN THE CODE
21.4.1. Skills development - An employer should provide skills
training to its managers to ensure that they do not act in a discriminatory manner.
21.4.2. Disputes and grievance resolution - Termination of employment
must be conducted according to fair labour practices and in line with the employer's
procedures, including its discipline, grievance and dispute resolution procedures.
22. EXIT INTERVIEWS
22.1. SCOPE
22.1.1. Exit interviews are conducted by the employer with the employee at the
time of voluntary termination, retirement or retrenchment.
22.1.2. The purpose of an exit interview is to obtain information about the employee’s
experience during employment. These exit interviews could provide valuable information
about barriers and other factors that could have contributed to the termination.
22.2. IMPACT ON EMPLOYMENT EQUITY An employer should analyse
the information it obtains from exit interviews and identify trends, which should
inform barrier removal initiatives.
22.3. POLICY AND PRACTICE
22.3.1. To make exit interviews an effective process, employers should consider:
22.3.1.1. Conducting a standard exit interview providing a set of guidelines for
consistent application;
22.3.1.2. Conducting an exit interview that allows the departing employee to comment
on any discriminatory practices in the workplace;
22.3.1.3. Senior employees, who are skilled at obtaining information, should conduct
exit interviews. Alternatively, an employer may consider using an independent
person or persons from designated groups to ensure that the departing employee
is able to speak as openly and honestly as possible about their experiences; and
22.3.1.4. Information disclosed in exit interviews is confidential and can only
be used to identify themes or problems in the workplace.
22.3.2. Employers may consider developing periodic reports reflecting trends that
may have emerged during exit interviews, including the identification of barriers
experienced by employees from designated groups.
22.3.3. Senior management should take action to eliminate barriers that are identified
during exit interviews.
22.3.4. Employers may consider comparing their staff turnover rates against similar
jobs within the same sector. If turnover is higher than these benchmarks then
an employer should consider initiating interventions to address the problems.
22.4. KEY LINKS TO OTHER TOPICS IN THE CODE
22.4.1. Retention - There are numerous factors that impact on
the retention of employees from designated groups. These factors include work
climate, competitive remuneration, effective performance management, learning
pathways, organisational culture, incentive schemes, challenging work assignments,
work-life balance and workplace environment.