The above Code of Good Practice was gazetted on 4th August 2005 in Government Gazette 27866
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This is an extremely important document. It is some 40 pages in length, and applies to almost all employers except those who are exempt from the provisions of the Employment Equity Act.
As a starting point, a brief summary of the contents reflects that matters addressed are Implementing E.E. ; Commencing Employment ; Job Descriptions ; Job Analysis ; Recruitment & Selection ; Induction procedures ; Probation matters ; Impacts on Employment Equity ; Harassment ; Discipline, Grievances and disputes ; Terminating Employment ; Exit Interviews ; Interviewing and short-listing job applicants ; Medical, Psychological and similar assessments ; Terms and Conditions of Employment ; Remuneration – equal pay for equal work or for work of equal value ; Advertising job vacancies ; Performance management ; Skills development ; Promotions and transfers ; and so the list grows.
Based only on those topics mentioned above, employers will realize that this is not a document to be ignored or treated lightly.
This is serious stuff!!
The Code clearly sets out how employers should integrate the Employment Equity requirements into its human resources policies and procedures.
It is very comprehensive in its coverage, and on a number of things extremely specific.
A further amendment is the amended Code of Good Practice on Sexual Harassment, which we will also be examining in detail and will cover in a series of weekly article.
This amended Code was also published in the above gazette.
Coverage includes The Test for Sexual Harassment; Factors to establish sexual harassment ; Guiding Principles ; Sexual Harassment Policies ; Procedures ; and Disciplinary Sanctions.
It must be noted that in the Forward to this document, as well as in section 2 Objective, it is expressly stated that this Code “provides guidelines to assist employers….”
The Code therefore, like many others, is not specific but rather is general in nature, because each employer to whom the Code applies is unique – and employers are therefore free to make variations to the Code to suit the particular requirements of that employer
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The Objective states further that the Code is not intended to be a comprehensive (43 pages ??) human resources Code, but rather it identifies areas in the management of human resources that play a key part in employment equity objectives.
These guidelines are intended to enable employers to ensure that their human resources policies and practices are non-discriminatory – which is really what the Employment Equity Act is all about – the elimination of unfair discrimination.
To establish the legality of the Code, it has been issued in terms of section 54 of the Employment Equity Act.
This Code must also be read in conjunction with:
[a] the Labour Relations Act, (LRA)
[b] the Code of Good Practice on Sexual Harassment (which we will address in future issues of the S.A. Labour Guide weekly newsletter.)
[c] The Code of Good Practice on the Preparation, Implementation & Monitoring of Employment Equity Plans, and
[d] the Technical Assistance Guidelines on Employment of People with Disabilites and lastly the Code of Good Practice on Key Aspects of HIV/AIDS
[e] the Basic Conditions of Employment Act (BCEA)
[f] the Skills Development Act (SDA)
[g] the Promotion of Equality and Prevention of Unfair Discrmination Act. (PEPD )
[H] THE Employment Equity Act. (EEA)
So there we have no less than five Codes of Good Practice and four Acts of Parliament each basically dealing (to a greater or lesser degree) with the elimination of unfair discrimination.
Sit back, take a deep breath, swallow an asprin and have a cup of tea !!
The Code applies to all employers who are covered by the Employment Equity Act.
Chapter 2 of the EEA ( Prohibition of Unfair Discrimination) applies to all employers.
The remainder of the Act applies to:
[a] any employer who employes 50 or more employees
[b] any employer who employs less than 50 employees but has a total annual turnover that is equal to or above the applicable annual turnover of a small business in terms of schedule 4 to the Act.
Municipalities and some organs of state are included.
In terms of the guidelines for the Application (para 3.3) of the Code , it states that the 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……”
It does not state that the guidelines must be incorporated into your EE planes – it states that they should be incorporated…….
In other words, that would imply that it is a recommendation – but the final decision is yours.
Implementing Employment Equity
Section 5 of the Code addresses this issue. The Implementation of employment equity covers two issues – the elimination of unfair discrimination and the designing and implementation of affirmative action measures.
That is nothing new – most employers are already aware of the purpose of employment equity.
The definitions of unfair discrimination are given :
[a] Direct unfair discrimination : is where a direct distinction is made on the basis of one or more of the prohibited grounds – {see Chapter 2 – EEA}
[B] Indirect unfair discrimination occurs when a policy and practice appears to be neutral or non-discrminatory but the outcome of applying that policy has a discriminatory effect for an employee or group of employees, and cannot be justified.
Employers must be careful to ensure that any complaint of unfair discrimination, whether direct or indirect, is addressed and addressed promptly and without delay.
This section of the Code explains that failure by the employer to address such issues and refusal by the employer to rectify where possible without incurring undue hardship, may in itself be seen as an act of unfair discrimination.
There is no implication that all employees must be treated in exactly the same way. It is recognized that differences exist between say senior managers and supervisors and that their respective positions require different needs and conditions.
The Constitution requires employers to acknowledge the differences between employees and treating them differently on the basis of those differences.
The point at issue is that all employees are treated fairly and without unfair discrimination.
Employment Equity therefore must achieve the following :
“that the requirement of “fair treatment” must achieve substantive equality as an outcome or result.”
Equity requires that any changes to the rules must result in the application of those rules being “fair.”
Remember that “unfair discrimination” can only result from an action taken or indeed an action not taken by the employer.
Job Descriptions
This Code actually refers to many aspects that are entrenched in the Employment Equity Act, and which will be addressed by employer’s in their Employment Equity and Affirmative Action plans.
Unfair discrimination and the analysis of the employer’s polices and procedures with a view to eliminating unfair or discriminatory practices is one such instance, which the new Code repeats in paragraph 5.2.4 and onwards.
The Code then goes on to repeat various procedures that are already stipulated in the EEA.
An interesting inclusion is the requirement that the employer’s performance management system, as applied to the performance appraisal of senior management employees, must include the appraisal, measurement of the extent to which those managers have achieved their numerical targets in the Employment Equity Plan.
Remember that in the EEA and the Code of Good Practice on Employment Equity plans, there is the requirement that the Employment Equity duties of those senior managers who are appointed with the tasks in terms of the EEA, must be incorporated in the manager’s job description – thus the requirement that the performance appraisal must include measurement of the manager’s performance in respect of the EEA.
Employers are now required to consider his numerical targets stipulated in the EE plan when engaging on recruitment and selection, as well as in promotion and training.
Paragraph 6 of the Code addresses job descriptions. We know for a fact that many employers do not provide an employee with a job description upon the employee commencing work. Some mistakenly believe that without a job description, the employer is free to demand that the employee perform any task that he is instructed to perform – from sweeping floors, to making the tea, to raking the garden etc.
The absence of a job description is a sure road to disaster – trust me on that one.
Other employers tell the employee on the first day of work “you compile your own job description and let us have a copy.”
Why does an employer employ a person when he does not have a clue what work that person is to do? Truly, such employers have no right to be in business.
Well, in terms of the Code all employers must now provide job descriptions to their employees.
The job description must contain certain minimum requirements. First, it must outline the role and duties of the job.
Second, it must give a description of the outputs of the job – what the job must achieve. The code states that this must be an accurate and current picture of what functions make up the job, and must not include unrelated tasks. The job description must outline the job’s location, purpose, responsibilities, authority levels, supervisory levels, and the interrelationships between the job and other jobs in the same are.
Furthermore, the job description must contain a description of the inputs of the job – namely, state what the person who is doing the job is required to do. This must contain details about the knowledge, experience, qualifications, skills and attributes required to perform the job effectively.
It is therefore quite obvious that employers must now sharpen their pencils, probably burn the midnight oil, and do a proper profiling of all jobs to comply with these requirements.
It is equally obvious that because of these requirements, in depth discussion of the job description will be required to be addressed with job applicants at the interview stage, in order to establish the applicant’s suitability to perform the functions listed in the job description.
Further, it is even more obvious that the old format of a job description is now in the garbage can.
The new format requires a full job profile, including work performance standards.
We saw last week that employer’s can no longer get away with not providing the employee with a job description.
Some employers do not provide job descriptions because they mistakenly believe that in the absence of a job description, the employee is obliged to do anything he is told to do.
Not so any longer – to those employers, there is only one message – the gravy train has run out of steam!!
Further, there are many employers out there who employ people even when the employer does not know why he is employing that person, and in fact does not even have a specific vacancy or a specific job for that person to do.
Unbelievable ? Certainly – but quite true.
These employers are those who employ a person, and then tell that person to write his own job description – that tells me clearly that this employer has employed a person in the hope that the employer may be able to find something for the employee to do, whereas in fact the employer does not have a clue what work the employee is to do, and he has not the faintest idea why this newly employed person has been employed .
So he says to the employee: “Look, I don’t know why you have been employed. Please write up a list and tell me what you are going to do around here.”
Those employers will now have to wake up, put up or shut up. Their days are numbered.
The Code states further that the job description must clearly state the essential or inherent requirements of the job, meaning that the minimum requirements that the employee needs to know is clearly communicated to that employee.
This requirement means that job descriptions must be clear, concise, and employers must make certain that the requirements have been clearly communicated to and are understood by the employee. If this is not done, it will greatly impact on the issue of Incapacity – Poor Work Performance.
The requirement specifically mentions that the minimum requirements should not be overstated – in other words, only the minimum that is required to perform the function effectively.
To summarise:
[a] All employers are required to provide a job description to every employee.
[b] Employers may not tell an employee to “write your own job description.”
[c] The job description must clearly state the essential or inherent requirements of the job, namely the minimum requirements that an employee needs in order to be able to function effectively in that job.
[e] The tasks or duties that are stated in the job description must be only those that are essential to be able to perform the job, and should not be overstated.
[f] The job description must be free of jargon and be clearly written.
[g] The competency specification must include only those criteria essential to perform the duties.
[h] Criteria must not disadvantage employees from designated groups.
[I] The job description must not contain criteria that are not relevant to the job. For example, the VERY POPULAR “do anything” clause is now outlawed. The job description may not contain a clause stating “plus any other duties that may be allocated from time to time.”
Such a clause is non-specific, is open to interpretation, and is too general to apply to any job in particular.
It is clear that employers must now embark on what will prove to be a big task – namely to profile all the jobs within the company in order to compile proper job descriptions, formulated in terms of these requirements, to be handed to existing employees and to be available on file for future employees.
A spin off of this exercise is that the job description – or job profile – will greatly assist in helping the employer to define what qualifications and experience, and what further training is required, in seeking suitable candidates for employment.
The Code lays down guidelines for recruitment and selection. Bear in mind that all this is related to your employment equity plans, including affirmative action, and the objective is the elimination of barriers that constitute an unfair discrimination to the designated group.
One of the barriers in the recruitment process is the inability to attract sufficient numbers form the designated groups.
Attracting as many applicants as possible from designated groups may provide the employer with a larger skills ppol from which to choose.
Employers should review the following practices:
[a] Advertising methods and headhunting – do you advertise only in a specific publication all the time ? It is accepted that for specific requirements, advertising may be restricted to certain industry specific publications, but that is the exception and not the
rule.
Advertise as widely as possible – including those publications whose readership is predominantly made up of the designated groups.
[b] The job application form – make sure that there are no discriminatory barriers (questions) on the form and that the information required is job specific – exclude irrelevant questions and information.
[c] The short listing process – make sure that all applicants are considered, and that in selecting applicants for the short list, the same criteria are fairly applied to all applicants.
Don’t pick applicants for short listing in any arbitrary manner – make sure that the selection is based on sound judgment and rationale, and meaningful criteria – and not by throwing darts at a dart board.
[d] Interviews – these must be conducted by the same panel for all the applicants selected for interview, and as far as possible the same questions must be put to each applicant.
[e] job offers – be careful here – do not make any promises or offers that may lead the applicant to believe that “he has got the job.” Even a simple remark like “I think you are just what we are looking for” can create a wrong impression in the mind of the candidate – and be the cause of him resigning from his present job because, in his mind, you have created the expectation that “he has got the job.”
Make it clear to all applicants that the only valid job offer is a written offer on official company stationery and signed by the M.D. – or whoever.
[f] Record keeping – this is a vital part of the process – keep records of all interviews and the outcome of theose interviews. Make notes on each application form stating the reasons why that applicant was not selected.
Remember that many job applicants run to the CCMA with unfair dismissal disputes or unfair discrimination disputes when they don’t get the job. Many applicants genuinely believe that the fact that they apply for the job entitles them to be employed – and when that does not happen, its off to the CCMA WE GO.
So the records are vital – keep them – you may need them.
We now take a look at the actual job offer. Before this offer is committed to paper, the employer must make certain that his expectations and the employees expectations are agreed.
There is no point in making a job offer to a candidate who has revealed at the interview that his expectations differ from those of the employer – or that he has expectations that the employer cannot provide.
Such an employment relationship will never last.
Expectations must agree for several reason, and one of the important reasons is that of employee retention. No employer desires a high staff turnover. The idea is to have a stable workforce, and the employer needs to employ people who are going to stay – “job-hoppers” are of no use to anybody – not even to themselves.
If a candidate rejects a job offer, the employer should solicit the co-operation of that candidate and conduct an “exit” type interview to try and establish the reasons for the rejection of the offer.
Obviously the candidate must have been interested, or he would not have applied for the job.
What then has noe persuaded him to change his mind?
The information obtained in this “exit” type interview could be of great importance to the employer.
It is essential that it is made clear to the candidate what the employers expectations are.
Employers are expected to keep copies of all documents used in the recruitment and interview/selection process for a “reasonable” period of time.
As is expected, in keeping with established good practice, the Code does not define the meaning of “reasonable.”
Presumably then it is left to the employer to decide.
It is important to keep these records in case another employee or indeed the candidate himself should, at a later stage, challenge the fairness of the recruitment and selection processes.
Reference checking is another area that requires special attention. The idea of this function is to verify information provided by the applicant on the job application form or at the interview process.
Reference checking must not be carried out in a manner that unfairly discriminates. The same checks must be done on all short-listed applicants.
An employer should only conduct integrity checks if it is relevant to the job. Such checks would include credit references ot checking of credit records, checking criminal records, checking of driver’s license validity, and so on.
We now take a look at the actual job offer. Before this offer is committed to paper, the employer must make certain that his expectations and the employees expectations are agreed.
There is no point in making a job offer to a candidate who has revealed at the interview that his expectations differ from those of the employer – or that he has expectations that the employer cannot provide.
Such an employment relationship will never last.
Expectations must agree for several reason, and one of the important reasons is that of employee retention. No employer desires a high staff turnover. The idea is to have a stable workforce, and the employer needs to employ people who are going to stay – “job-hoppers” are of no use to anybody – not even to themselves.
If a candidate rejects a job offer, the employer should solicit the co-operation of that candidate and conduct an “exit” type interview to try and establish the reasons for the rejection of the offer.
Obviously the candidate must have been interested, or he would not have applied for the job.
What then has noe persuaded him to change his mind ?
The information obtained in this “exit” type interview could be of great importance to the employer.
It is essential that it is made clear to the candidate what the employers expectations are.
Employers are expected to keep copies of all documents used in the recruitment and interview/selection process for a “reasonable” period of time.
As is expected, in keeping with established good practice, the Code does not define the meaning of “reasonable.”
Presumably then it is left to the employer to decide.
It is important to keep these records in case another employee or indeed the candidate himself should, at a later stage, challenge the fairness of the recruitment and selection processes.
Reference checking is another area that requires special attention. The idea of this function is to verify information provided by the applicant on the job application form or at the interview process.
Reference checking must not be carried out in a manner that unfairly discriminates. The same checks must be done on all short-listed applicants.
An employer should only conduct integrity checks if it is relevant to the job. Such checks would include credit references ot checking of credit records, checking criminal records, checking of driver’s license validity, and so on.
Resource Policies and Practices
The Code now turns to the question of the employment of people with disabilities. All people of all races and both genders who are disabled in terms of the Act fall under the designated group.
On the Dept of Labour website, you will find a document entitled “Technical Assistance Guidelines on the Employment of People with disabilities.”
It is essential that you download this approximately 60-page document and rad it in conjunction with this Code of Good Practice.
The Technical Assistance Guidelines (TAG) you with firstly a good definition of what is “disability.”
This is described as follows:
“1.3.1.1 People first
People with disabilities are not conditions or diseases. They are individual human beings. For example, a person is not an epileptic or a victim of AIDS but rather a person who has epilepsy or a person who has AIDS. First and foremost they are people who may in addition have one or more disabling conditions. Hence, they prefer to be referred to in the media, such as in newspapers or on television, as people with disabilities.
1.3.1.2 Distinction between disability and handicap
A disability is a condition caused by an accident, trauma, genetics or a disease which may limit a person’s mobility, hearing, vision, speech, intellectual or emotional functioning. Some people with disabilities have one or more disabilities. A handicap is a physical or attitudinal constraint/barrier that is imposed upon a person, regardless of whether that person has a disability. Some dictionaries define handicap as "to put at a disadvantage".
Some people with disabilities use wheelchairs. Stairs, narrow doorways and curbs are handicaps imposed upon people with disabilities who use wheelchairs. Many people who are blind use Braille to read and they may also use voice recognition software on a computer or even tapes to listen to what others read in printed media. Not having the facility to use one or more of these to accommodate an employee constitutes a handicap.
Persons with intellectual disabilities may learn vocational skills through observation, role-play and breaking a complex job down into small steps, which can be mastered, one or more at a time. Insisting that all employees learn the same way, through printed material or formal classroom training, may be a handicap for such people with disabilities.
People who are deaf communicate effectively through sign language. The lack of trained interpreters when needed to translate between spoken languages and the deaf is a handicap.3
5. Definition of people with disabilities
"People who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment."
The rest of this document you must study for yourself.
The employer is required to make “reasonable accommodation” for the needs of applicants with disabilities.
It should be noted that employers must not discriminate against any person on grounds of disability, and especially in cases of HIV/AIDS.
The Code deals also with the issue of Medical, psychological and other similar assessments.
In the past, it was common practice for employers to impose such tests on job applicants, and in many cases the tests were totally irrelevant to the job. The tests were carried out simply as “a matter of course.”
The job applicant had no choice in the matter – he either complied, or he re-joined the ranks of the unemployed.
The code recognizes that “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.”
The code goes further to state that even applicants who are otherwise suitably qualified and who meet all the job criteria, should not be excluded from any such tests that the employer normally applies to job applicants.
Remember that, while this code recognizes that there is value in such tests, and that relevance to the job functions will be a deciding factor, these tests remain forbidden by the Act unless legislation (such as this code) permits or requires it, or if 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 shown to be scientifically valid and reliable, can be applied fairly to all employees, and is not biased against any employee or group.
Employers should refer to section 7 of the Employment Equity Act, and also to the Code of Good Practice on Key Aspects of HIV/AIDS AND employment, as well as the Code of GOOD practice on the Employment of People with Disabilities.
All of these documents must be read together on the matter of these medical or psychological assessments.
The value of such assessments, if scientifically proven and reliable, is not to be diminished. These assessments can prove valuable in assessing a person’s potential for further development, in assessing a persons abilities, and suitability for the job or even for future promotion and training.
The employer should formulate a proper Company Policy on the use and application of these assessments, in order to ensure that the job interview and job selection panel can be certain that the assessments are carried out fairly and are applied to all job applicants without unfair discrimination, which could prejudice or even give advantage to any particular group or job applicant or employee.
A proper policy will ensure that all members of the interview and selection panels are in not doubt about when and under what circumstances to apply the assessments, and will ensure that this decision is not left to individual panel members to make, but is rather made for them in the policy.
The policy must ensure that all assessments use are valid, reliable, and fair so that no group or individual is disadvantaged or advantaged by the application of the assessment.
It is a requirement that administrators and users of medical, psychological and other similar assessments should be qualified and registered with the appropriate recognized professional body of South Africa.
Continuing on the matter of medical and psychological assessments, there is a further requirement that assessors should be trained to understand, evaluate and interpret the evidence or the outcomes of the assessment objectively against the skills and abilities required for the job, and must be able to justify their decisions.
Assessors are required to ensure that they assess against the competencies of the job.
All employees or job applicants for a particular job must be assessed against the same criteria, and assessment records must be kept for a minimum period of 12 months.
The code stipulates certain definitions in regard to assessments:
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 assessment are applied – it is the total of all the variables that play a role or influence the final decision of the employer.
Psychological assessments are valid for one year.
The Code now turns to the issues of Terms and Conditions of Employment.
The employer may not discriminate unfairly in the terms and conditions of work or access to benefits, facilities or services that are available to employees.
Every employer is required by the Employment Equity Act to audit its terms and conditions of employment to eliminate any unfair discriminatory practices.
Further, employers are required to conduct periodic audits to test the perceptions of employees about whether the employees perceive that the terms and conditions of employment are non-discriminatory.
Furthermore, these requirements should form part of the employers EEA plans.
Employers are required to provide training, information and literature to shop stewards and employees, explaining the various terms and conditions of employment, such as annual leave, sick leave, family responsibility leave, and so on.
There is no doubt whatsoever that there exists among employees a huge degree if total ignorance regarding their benefits, and their rights regarding these matters, and especially in regard to the Basic Conditions of Employment Act.
The degree of ignorance on these matters is quite appalling, and it would be a tremendous advantage to employers to educate their employees in these matters.
In fact, it can be stated that alongside this issue is the appalling lack of knowledge on the part of employers regarding the BCEA, and many employers do not even have a copy of that Act in the bottom draw.
