Why employers cannot ignore equity laws...

Ivan Israelstam


Minister of Labour Membathisi Mdladlana is making increasingly louder noises relating to thousands of employers who fail to comply with employment equity (EE) legislation. Those employers who are still avoiding or evading compliance with this legislation say the reasons they are opting out include: "The EE Act and related regulations and codes do not apply to us"; "We cannot afford to implement the legislation"; "The department of labour's (DOL) resources are too stretched and inefficient to catch us" and "If we're caught we will simply say we did not know how to implement EE."

However, employers should be aware that:

  • The EE legislation applies to a large proportion of employers
  • Those thousands of employers who do fall under the yoke of this legislation cannot afford not to comply with it. This is because the penalties for non-compliance are extremely harsh and include a maximum fine of R500 000.
  • The DOL has upgraded its resources and is hot on the trail of defaulters
  • The excuse (for non-compliance) that the employer did not know how to implement EE has been invalidated by the new Code of Good Practice on the Integration of Employment Equity into HR Policy and Practice, Government Gazette No 27866, August 4 2005.

    This new code spells out how the employer's EE obligations are to be integrated into its normal everyday human resources policies and practices. The code is very comprehensive and covers the following topics:
  • Implementing EE
  • Commencing Employment
  • Job Analysis & Job Description
  • Recruitment & Selection
  • Induction
  • Probation
  • Medical, Psychological & Other Similar Assessments
  • During Employment
  • Terms and Conditions of Employment
  • Remuneration
  • Job Assignments
  • Performance Management
  • Skills Development
  • Promotion and Transfer
  • Confidentiality and Disclosure of Information
  • Retention
  • Scope
  • Impact on Employment Equity
  • Harassment
  • Discipline, Grievance and Dispute Resolution
  • Ending Employment
  • Terminating Employment
  • Exit Interviews

Space does not allow me to report on all of these topics. However, to give readers an idea of the in-depth nature of the provisions, we have quoted below a portion of the code dealing with promotion and transfers as they relate to EE:

"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 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 they are applying them consistently.
6.3.2. An employer may implement a policy of preference towards members of designated groups in transfers and promotions as a legitimate affirmative action measure.
6.3.3. 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.

Employers are advised that the fact that the legislators have taken the time and trouble to develop this 43-page code makes it clear that they are deadly serious about the implementation of EE.

  • You can phone Ivan at 082-456-8247 or 011-787-5445  or email
  • Our thanks and appreciation to Ivan and The Star newspaper for permission to publish this article.

Click here to download the new code of conduct on Employment Equity 

Case Law Summaries and Articles


Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

Read More >>>


Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

Read More >>>


Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

Read More >>>


Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

Read More >>>







Courses and Workshops




Compensation for Occupational Injuries and Diseases Course

22 August 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

12 September 2019

Southern Sun: Maharani Towers: Durban

Employment Equity Committee Training

23 August 2019

Emperors Palace: Convention Centre

29 August 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

30 August 2019

Tsogo Sun: Century City: Cape Town

Shop Steward Training

28 August 2019

Emperors Palace Convention Centre

Basic Labour Relations

04 September 2019

Emperors Palace: Convention Centre

The OHS Act and the Responsibilities of Management

13 September 2019

Southern Sun: Maharani Towers: Durban

19 September 2019

Emperors Palace: Convention Centre


 Our Clients