Framework of Code of Good Practice by jolinmilioncherie






Draft Human Resources Code of Good Practice: Public Hearings

The Commission for Employment Equity is in the process of developing a Human Resources Code of
Good Practice. The latest version of this draft Code is available on the Department of Labour’s website at (go to legislation, then Employment Equity Act, and then look under Codes of Good

The Department of Labour will be conducting public hearings on the draft Human Resources Code of
Good Practice in the week of 11 to 15 October 2004. These hearings will take place as follows:

11 October                   Gauteng
                             FNB Training and Conference Centre

                             Protea Hotel

12 October                   North West
                             Rustenburg Library

                             Free State
                             President Hotel

13 October                   Northern Cape
                             Department of Labour Provincial Office

14 October                   Eastern Cape
                             Port Elizabeth Technikon

                             The Ranch-Protea Hotel

15 October                   Western Cape
                             Old Mutual Business School

                             KwaZulu Natal
                             Protea Hotel Karridene

Companies or organisations that want to make presentations at these hearings, or who wish to
find out more about any of the hearings, are asked to contact the following at the Department
of Labour’s Employment Equity Directorate:

Niresh Singh:      
Ntsoaki Mamashela: 
Thabile Kunene:    

The Department of Labour’s telephone number is: 012 309 4000.

Interested parties who cannot attend the hearings can submit written inputs to the Department
of Labour by no later than close of business on 22 October 2004 (submissions can be e-
mailed to the persons named above or faxed to 012 309 4737 / 4739).
                     FOR PUBLIC COMMENTS

 1. FOREWORD ................................................................................................... 5
 2. OBJECTIVE..................................................................................................... 5
 3. SCOPE AND LEGAL PRINCIPLES................................................................. 6
 4. STRUCTURE OF THE CODE ......................................................................... 7
 5. IMPLEMENTING EMPLOYMENT EQUITY ..................................................... 8
PART A: COMMENCING EMPLOYMENT ............................................................... 20
 6. ATTRACTION................................................................................................ 20
 7. RECRUITMENT & SELECTION .................................................................... 22
 8. INDUCTION................................................................................................... 29
 9. PROBATION ................................................................................................. 31
 10.   MEDICAL AND PSYCHOLOGICAL ASSESSMENTS ............................... 32
PART B: DURING EMPLOYMENT .......................................................................... 35
 11.   TERMS AND CONDITIONS OF EMPLOYMENT ...................................... 35
 12.   REMUNERATION ...................................................................................... 38
 13.   JOB ANALYSIS AND JOB DESCRIPTIONS ............................................. 40
 14.   JOB ASSIGNMENTS ................................................................................. 42
 15.   PERFORMANCE MANAGEMENT ............................................................ 44
 16.   SKILLS DEVELOPMENT ........................................................................... 47
 17.   PROMOTION AND TRANSFER ................................................................ 50
 19.   CREATING EQUITY IN THE WORKING ENVIRONMENT........................ 55
 20.   RETENTION .............................................................................................. 59
 21.   DISCIPLINE, GRIEVANCE AND DISPUTE RESOLUTION ....................... 60
PART C: ENDING EMPLOYMENT .......................................................................... 64
 22.   EXIT INTERVIEWS .................................................................................... 64
 23.   TERMINATING EMPLOYMENT ................................................................ 66
                     FOR PUBLIC COMMENTS


     1.1.   The people who make up the human resources of an organisation are one of
            its most important assets. The commitment of an organisation to developing
            and investing in its people, and to treating them according to the principles of
            fairness and equity, has been shown to result in increased productivity,
            motivation and resourcefulness in the working environment. The Employment
            Equity Act, 55 of 1998 (“the Act”) imposes a duty on employers to eliminate
            unfair discrimination and also provides a framework for the attraction,
            development, advancement and retention of an organisation’s human
            resource talent. This is secured through eliminating the historical barriers that
            prevent advancement of the designated groups (Black people including
            African, Coloured and Indian, Women and People with Disabilities) and
            through ensuring that positive or affirmative action measures are in place to
            expedite their growth and advancement.

     1.2.   The challenge for South Africa is how best to realise the benefits of a
            competitive and equitable workplace in the context of the challenges of a
            compounded diverse global economy and constraints around infrastructure,
            skills, poverty, unemployment and service delivery. Employers are
            increasingly realising that having racial, gender and disability diversity in
            businesses that operate in a diverse society is key to business growth and
            that sustaining this growth requires an ongoing commitment to training and
            skills development, mentoring and eliminating barriers. How to attract, utilise,
            manage, develop and retain talent in the workforce through effective human
            resource management while contributing effectively to economic growth and
            business objectives.

     1.3.   In this context, the implementation of effective employment equity will assist
            employers to maximise human resource development through eliminating
            unfair discrimination, barriers and promoting affirmative action. This Code
            presents some guidelines to assist employers with implementing these


     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 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 relevant for employment
            equity purposes and can be used to advance equity objectives.

     2.2.   The guidelines in the Code will enable employers to ensure that their human
            resource rules, policies, procedures, practices and guidelines are based on
            anti-discrimination and reflect employment equity principles in the following

            2.2.1.    Commencing Employment:

                     FOR PUBLIC COMMENTS

                   Recruitment and selection



                   Medical and psychological assessments

               2.2.2.    During employment:

                   Conditions of Employment


                   Job analysis and job descriptions

                   Job assignments

                   Performance management

                   Skills development

                   Promotion and transfer

                   Confidentiality and disclosure of information

                   The working environment and facilities


                  Discipline, grievance and dispute resolution

               2.2.3.    Ending employment

                   Exit interviews

                   Termination of employment


     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.

 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 and the Code of Good
Practice: Key Aspects on the Employment of People with Disabilities.
                     FOR PUBLIC COMMENTS

     3.2.   The Code should also be read in conjunction with the Constitution of South
            Africa, 108 of 1996 and all relevant legislation, which includes the following:

            3.2.1.    the Labour Relations Act, 66 of 1995 as amended;

            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;

            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 organisations to implement
            employment equity by providing ideas that could be incorporated into
            employment equity plans and that guide rules, procedures, policies, practices
            and guidelines


     4.1.   The structure of this Code mirrors the life cycle of an employee in
            employment. It deals with possible unfair discrimination and barriers that
            could occur at each phase in the employment cycle, from commencing
            employment, during employment and on termination of employment. It also
            describes affirmative action measures that could be used at each phase to
            advance designated groups.

     4.2.   Each topic focuses on the following areas:

            4.2.1.    The scope. This section provides a brief definition of the topic in
                      the context of the employment life cycle;

            4.2.2.    The impact of employment equity. This section deals with the
                      anti-discrimination and affirmative action measures that are
                      relevant in relation to the topic;

            4.2.3.    Policy and practice issues. This section provides information
                      about the policy and practice issues that arise and makes
                      suggestions regarding their implementation; and

            4.2.4.    Link with other areas. This section identifies cross-references to
                      other topics dealt with in this Code, as well as other relevant Codes
                      and labour legislation.
                     FOR PUBLIC COMMENTS


         5.1.     SCOPE

                  5.1.1.      Implementing employment equity involves two key initiatives:

                        Eliminating unfair discrimination in human resource
                                          rules, procedures, policies, practices and guidelines
                                          and in the workplace; and

                        Designing and implementing affirmative action
                                          measures to achieve the 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 that are used
                              to deal with them in the workplace.


                  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 grounds” 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 inherent job requirements.

                  5.2.2.      The Act prohibits both direct and indirect unfair discrimination.
                              Although direct discrimination is easy to identify in the workplace
                              because it involves a distinction made directly on the basis of one
                              or more of the prohibited grounds, indirect discrimination (often
                              called adverse impact or systemic discrimination) is more difficult to
                              recognise. Indirect discrimination occurs when a rule, procedure,
                              policy, practice or guideline on its face 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

    Unfair discrimination can take place by means of an action or an omission.
                     FOR PUBLIC COMMENTS

               5.2.3.      Equality can often involve a formal notion of treating everyone who
                           is in a similar position the same. This can perpetuate unfairness
                           when those who are similar (e.g. all senior managers), have
                           different needs and circumstances that impact on their ability to
                           perform effectively3. Our law 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 notion of
                           “fair” treatment, in order to achieve substantive equality as an
                           outcome in the workplace. Equal treatment and equal opportunity,
                           like equality, envisage subjecting everyone to the same rules
                           without distinction. This ignores the fact that sometimes the rules
                           may themselves be unjust, or that not everyone has the same
                           ability to compete according to those rules and the results will
                           always favour the same people. Equity requires changing the rules
                           so that their application is fair.

               5.2.4.      The Act also recognises that harassment is a form of unfair
                           discrimination and prohibits it in the workplace. 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.

               5.2.5.      An employer is under an obligation to take steps to prevent
                           workplace harassment. This includes ensuring that a clear rule
                           exists in the workplace, which is understood by all employees,
                           prohibiting harassment and other forms of unfair discrimination.
                           This should be incorporated in a formal written policy that is
                           communicated throughout the workplace and displayed in
                           prominent places. The policy should make it clear that harassment
                           is regarded by the employer as a form of serious misconduct, which
                           may result in dismissal or other disciplinary action.

               5.2.6.      Given the above, and the primary responsibility of employers to
                           eliminate all forms of unfair discrimination in the workplace, it is
                           essential that all employers should conduct an audit and analysis of
                           all their employment rules, procedures, policies, practices and
                           guidelines, as well as the working environment and facilities. The
                           audit should identify whether any of the rules or practices
                           applicable in the workplace contain any unfair discrimination or
                           barriers to the recruitment, promotion, advancement or retention of
                           designated groups. Once the actual or potential barriers are
                           identified, the employer should consult about the strategies for

  For example, senior managers who have family responsibilities cannot always be expected to attend
meetings at night. This will require that they be accommodated by changing meeting times, for
instance, to enable them to be available. Where the employer will suffer undue hardship in making the
accommodation, the employer’s conduct will not constitute unfair discrimination.
                     FOR PUBLIC COMMENTS

                                eliminating these barriers or discrimination, and these strategies
                                should be incorporated into the Employment Equity Plan for that
                                workplace. Regular monitoring should occur to ensure that the
                                unfairly discriminatory policies or practices do not recur or manifest
                                themselves in different ways in the workplace.

                  Implementing affirmative action measures to achieve employment equity

                  5.2.7.        Removing barriers4 is only the first step towards ensuring fairness
                                and equity in the workplace. In the context of our historical
                                disparities in South Africa, the Act requires employers, employees
                                and trade unions to jointly develop strategies to advance the
                                designated groups though adopting appropriate affirmative action
                                measures and incorporating these measures into formal
                                organisational Employment Equity Plans. Affirmative action
                                measures are essentially remedial measures designed to redress
                                disadvantage. This is a mandatory strategy to achieve equity in
                                employment as an outcome and various types of affirmative action
                                measures (also called barrier removal measures) can be taken in
                                relation to different areas of human resources, which form the
                                subject of this Code. This is covered in more detail on the Code of
                                Good Practice on the Preparation, Implementation and Monitoring
                                of Employment Equity Plans.

       5.3.       POLICY AND PRACTICE

                  5.3.1.        Under the Act every designated employer is required to undertake
                                four processes when developing a strategy to implement
                                employment equity:

                             consulting with its employees and representative trade

                             analysing all employment rules, procedures, policies,
                                               practices, guidelines and the working environment and
                                               developing a demographic profile of its workforce;

 A barrier exists where a rule, procedure, policy, practice or guideline or an aspect of it limits the opportunities of
employees because they are from designated groups. Examples of `barriers' previously identified in comparative
discrimination law include:
   The lack of role models from designated groups in senior positions in a corporation;
   The `glass-ceiling' for women, as manifested in the `old boys'' network; expectations of long working hours;
    and lack of childcare facilities or career breaks;
   Job specifications that set requirements which are not essential for job performance (for example, a matric or
    university degree)
   Workplace structured according to the assumptions of a homogenous, white, male workforce;
   Informal networks and support structures that are based on religious/cultural/ethnic affiliation;
   An inhospitable and/or non-supportive workplace climate where there is a failure to communicate with those
    perceived to be outsiders or different from the norm; and
   Sexist language used by persons in senior positions or communication that relies extensively on sporting
    analogies which alienates women.
                     FOR PUBLIC COMMENTS

             preparing and implementing an employment equity
                               plan; and

             reporting to the Department of Labour on progress
                               made with implementation of its employment equity

          5.3.2.   This section provides guidance in relation to the Analysis and
                   Consultation aspects of the employer’s obligations. The planning
                   and reporting process are dealt with in the Department of Labour
                   Code on the Development, Planning and Implementation of the
                   Employment Equity Plan. Key elements of this Code include
                   preparations, implementation and monitoring of Employment Equity

          The policy and practices analysis

          5.3.3.   Designing and conducting a comprehensive audit and analysis of
                   all existing and potentially unfair discrimination practices and
                   barriers, will enable organisations to develop realistic employment
                   equity plans that are workplace specific and capable of

          5.3.4.   The analysis of rules, procedures, policies, practices and guidelines
                   and other written documentation can be done through collection of
                   the information, listing what is applicable, and conducting a desk
                   exercise to identify 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. The sample selected for interviews, surveys or
                   focus group discussions should be carefully considered, as this will
                   affect the validity of the results. If the analysis process has
                   credibility the results are more likely to be accepted. This may, in
                   some workplaces require independent researchers to be used, to
                   conduct the practices analysis. The level at which the analysis is
                   conducted depends on the organisational structure. A group of
                   companies may have centralised policies, but the practical
                   implementation of those policies may differ from company to
                   company. In other organisations the separate operating entities
                   may have their own policies and a decentralised analysis would
                   then be required.

          5.3.6.   The relevant questions to be posed in the analysis would involve
                   looking at whether the rule, procedure, policy, practice or guideline

             unfairly discriminatory;
                     FOR PUBLIC COMMENTS


            applied consistently to all employees; and

            compliant with labour legislation.

          5.3.7.   The following questions should be considered in determining
                   whether unfair discrimination exists. (This is an example of a
                   method that could be used and employers, employees and trade
                   unions in consultation can agree on an acceptable methodology):

            Is there a distinction made between employees in the
                              rule, procedure, policy, practice or guideline?

            If so, is this distinction made on one or more of the
                              prohibited grounds?

            If not, there is no unfair direct discrimination, but there
                              may be indirect discrimination.

            To identify this, look at whether there is a neutral rule,
                              which has adverse impact and cannot be justified. If this
                              is the case then it is likely that indirect discrimination

            The next question would then be whether the unfair
                              discrimination can be justified as an affirmative action
                              measure or as an inherent job requirement.

          5.3.8.   An organisation should ideally formulate appropriate barrier
                   removal measures for each of the forms of discrimination identified
                   in the policy and practices audit. These mechanisms would also be
                   the subject of consultation and should ideally be incorporated into
                   the Employment Equity Plan for that organisation, with appropriate
                   timeframes, strategies and responsibilities allocated for each
                   barrier removal measure.

          5.3.9.   An employer should ideally communicate the outcome of the
                   analysis to the organisation in as transparent a manner as possible.
                   The method of communication would depend on the culture of the
                   organisation, the frequency and common terms of communication,
                   the role of the Employment Equity Forum or other consultative
                   structure and the available infrastructure and resources. The
                   leadership of the organisation should ideally also receive feedback
                   in order for them to participate in strategic input in regard to
                   appropriate barrier removal and to communicate the organisation’s
                   commitment to barrier removal.
                     FOR PUBLIC COMMENTS

                  Developing a workforce profile and setting numerical goals for equitable

                  5.3.10.    The workforce profile is essentially a snapshot of an organisation,
                             based on identifying the occupational categories and levels where
                             designated groups are under-represented. Its development may be
                             based on a number of different methods. Under-representation
                             refers to the statistical disparity between the representation of
                             designated groups in the workplace compared to their
                             representation in the labour market. Under-representation will not
                             on its own constitute prima facie proof of unfair discrimination,
                             although it indicates the likelihood of barriers in recruitment,
                             promotion, training and development.

                  5.3.11.    Collection of information for the workforce profile is ideally done
                             through an employee survey, which requires employees to identify
                             themselves as members of the designated groups. Employers may
                             either design their own specific questionnaire or use Form EEA1
                             promulgated in terms of the Act. This aspect is dealt with in the
                             Code of Good Practice on the Preparation, Implementation and
                             Monitoring of Employment Equity Plans. It is preferable for
                             employees to self-identify and for the employer to allocate an
                             employee to a designated group only in the absence of employee
                             self-identification. In such an instance the employer can either rely
                             on existing data or determine the employee’s designated group
                             status based on a visual identification or identification by a co-

                  5.3.12.    The workforce profile should indicate the extent to which
                             designated groups are under-represented in that workforce in terms
                             of occupational categories and levels compared to their external
                             availability in the national, provincial or regional, or metropolitan
                             economically active population or other benchmark used by the
                             organisation5. An employer should ideally reflect its workforce
                             profile in percentages, rather than numbers, to accurately reflect
                             current and future employee ratios in an organisation. The profile
                             can be used to compare the organisation to others according to
                             size, structure, and operations in the same sector, industry, or
                             geographic area, although this would require sectoral
                             benchmark against.

                  5.3.13.    The extent of the under-representation revealed by the workforce
                             profile would represent the ideal numerical goal for each
                             occupational category and level for that workplace.

  The benchmark used by the employer would depend on the area in which the employer recruits – a
national operation is more likely to recruit nationally while a metropolitan council is more likely to
recruit in its area. Considerations such as seniority of the position, job specifications, degree of
specialisation, scarcity of skills, etc. would also determine the recruiting area and applicable data.
    Most SETAs collect and benchmark representivity and skills data.
                     FOR PUBLIC COMMENTS

                  5.3.14.    Numerical goals can be based on a top-up approach where all
                             components of an organisation determine their specific under-
                             representation, skills pool constraints and other relevant factors
                             and then set goals based on appropriate strategies. A top-down
                             approach involves goals set by the leadership or central structure,
                             which the rest of the organisation is then required to implement.
                             Setting goals based on planning for each department in the
                             organisation and linking this to the business planning and
                             budgeting process is a more realistic approach to setting numerical
                             goals than setting inspirational or political goals that are usually
                             top-down. In addition to realistic and achievable targets or goals the
                             organisation can also set “stretch goals” with appropriate
                             departmental or business unit awards and incentives. Furthermore,
                             segmenting the organisation to enable goals to be set across the
                             board avoids the lowest common denominator being the applicable

                  5.3.15.    There is no fixed methodology7 for determining under-
                             representation of designated groups and employers should utilise
                             whatever approach is most practical given their specific industry
                             and context. Employers and employees should bear in mind that
                             external representation rates of designated groups in the
                             economically active population is already a reflection of a
                             segmented labour market based on considerations other than skills
                             and expertise.

                  5.3.16.    The benchmark for equitable representation in the Act is the
                             economically active population8 (“EAP”). However, the Act
                             promotes the use of flexible numerical targets and not fixed,
                             prescribed targets for which specific penalties are imposed, and
                             requires employers and employees to consult about the ideal
                             representation of the different demographic groups they aspire to
                             achieve in their workplaces. This process of self-regulation requires

    Example of a method adapted from Human Resources Canada Guidelines, 2000 :

          1.1.1.To determine the internal representation rate of designated groups, divide the number
                  of employees from the designated groups in each occupational category/level by the
                  total number of employees in each occupational category/level.

          1.1.2.To determine the expected representation rate, all other factors being constant, multiply
                  the total number of employees in each occupational category/level of the employer’s
                  workforce by the availability in the EAP (or other benchmark used) of designated
                  groups at each occupational category/level.

          1.1.3.The representation gap or under-representation is the actual number of employees of
                  each designated group per occupational category / level less their expected
                  representation rate.

 Economically active population information is available from the Department of Labour, Statistics
South Africa and from the relevant Sector Education and Training Authority (“SETA”) to which the
employer is affiliated. The SETA provides information about the economically active population for
national, provincial and metropolitan regions.
                     FOR PUBLIC COMMENTS

                               the organisation itself to monitor its achievement of its numerical

                  5.3.17.      The Act allows employers, employees and trade unions to
                               strategically prioritise certain groups from amongst the designated
                               groups. Alternatively, en employer can agree, in the consultation
                               process, to focus more on disability or gender in one year of its
                               Employment Equity Plan and on race in another, if resources are
                               limited or some other justification exists. The employer can then set
                               numerical goals based on these strategic priorities, provided it is
                               able to demonstrate in its EEA2 and EEA2A reports that it has
                               made reasonable progress in achieving its qualitative and
                               quantitative objectives. This should be informed by the
                               employment equity analysis.

                  5.3.18.      Numerical goals will result in bringing a critical mass of the
                               excluded group into the workplace and their increased presence
                               and participation will have an impact on changing the workplace
                               culture and its rules, procedures, policies, practices and guidelines
                               to be more accommodating of diversity.

                  5.3.19.      An organisation should consider the following factors when setting
                               and revising numerical goals:

                           the current workforce profile;

                           the anticipated rate of natural attrition;

                           the anticipated rate of termination of employment
                                              arising from disciplinary action, employees approaching
                                              retirement age, employees proceeding on long leave or
                                              maternity leave with limited prospects of returning to
                                              work and other factors specific to the workplace.

                           the likely impact on the current workforce profile if
                                              current recruitment rates continue over the following
                                              year (or relevant period);

                           historical turnover of designated groups in different
                                              occupational categories and levels and the impact this
                                              has had on the current workforce profile;.

                           the pool of suitably qualified persons from designated
                                              groups, from which the employer may be reasonably
                                              expected to draw for recruitment purposes.9
                                              Consideration should be given to the potential to

  The skills pool availability gives a sense of what is theoretically possible in terms of recruitment of designated
groups over the next year of the plan or whatever the relevant period is. This skills pool can also include a
“development or talent pool” that is created internally and consists of employees who are being developed or
fast-tracked for positions to which they can be “promoted”, “transferred” or “recruited” when they have acquired
the skills and competencies that make them suitably qualified for those positions. The development pool can be
created as part of the employer’s succession strategy or can fulfill the function of building and growing talent in
the organisation through proactive means.
                     FOR PUBLIC COMMENTS

                                develop employees from the designated groups in
                                terms of skills development training and recognising
                                these employees prior learning.

          5.3.20.   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. A proper system in this regard will make it
                    easier to monitor changes.


          5.3.21.   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.
                    Proper and meaningful consultation will contribute to a joint
                    commitment to workplace transformation. It may also have long term
                    benefits of fostering workplace democracy and productivity by
                    ensuring that realistic employment equity plans are prepared which
                    address issues of development and training of designated groups to
                    meet both employment equity obligations as well as the demands of
                    an increasing global economy.

          5.3.22.   The Act requires consultation with a sufficiently representative
                    trade union representing employees at the workplace and
                    employees or their representatives. Although representative trade
                    unions must be involved in the consultation process, including trade
                    unions is not enough. Employers must consult with a group
                    involving employees from across all occupational categories and
                    levels, employees from designated groups and employees not from
                    designated groups. A broad spectrum of employees is meant to be
                    included in the consultation process.

          5.3.23.   It is essential to ensure that whatever form consultation takes, it does
                    not undermine existing collective bargaining processes or
                    relationships with unions. As a practical matter, employers will
                    probably want to involve all trade unions active with members
                    within their workforce, even if they are not sufficiently
                    representative under the Labour Relations Act. This may give rise
                    to complications in terms of the willingness of representative trade
                    unions to take part in a process involving other entities or non-
                    union members.

          5.3.24.   To the extent that transformation committees or other structures
                    bringing together employees and management already exist, it will
                    often be possible to adapt them 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, they should ideally be the
                    vehicle for consultation and attempts should be made to ensure
                     FOR PUBLIC COMMENTS

                    that they are as representative as possible. Where no structures
                    exist or current structures are impractical for employment equity
                    consultation purposes, the employer (or employees) should initiate
                    a process to establish a consultative structure. The criteria for
                    appointment of representatives to the structure, the number of
                    representatives, their roles and responsibilities, mandates,
                    applicable rewards and incentives will have to be clearly set out in
                    an accountability framework. This can also function as the terms of
                    reference for the structure. The representatives on the structure
                    should be trained on understanding and implementing the key
                    components of the Employment Equity Act.

          5.3.25.   Employers will need to consider how to define the term “workplace”
                    for purposes of the Act. The Act does not define the workplace, and
                    leaves it to employers to determine, for example, whether
                    consultation structures will exist at centralised, divisional, branch or
                    factory levels as well as the inter-relationship between the different
                    structures. Where a designated employer consists of a group of
                    companies, an appropriate process would have to be designed
                    which allows autonomy of individual companies as well as a co-
                    ordinating role of a centralised structure.

          5.3.26.   Assessments of the adequacy of the consultation process are likely
                    to hinge on the stage at which consultation was commenced (if key
                    decisions were made before-hand, consultation may be judged
                    inadequate), the level of participation of various groups (simply
                    presenting information to employees as a fait accompli is unlikely to
                    suffice), the depth of the consultation process (undue haste may
                    raise suspicions) and the degree to which proposals from
                    employees were taken into account (where proposals are rejected,
                    clear and logical reasons should be given). Conducting an in-depth
                    consultation process that satisfies all participants is the best way of
                    safeguarding the employment equity initiative from later challenge.

          5.3.27.   If the employment equity consultation process is to be meaningful
                    in terms of identifying the strategic issues and ways to address
                    them, it is imperative that an employer provides the trade unions
                    and employees with the necessary information that will empower
                    them to play a positive role. A properly managed process, in which
                    disclosure of relevant information is made, will have a long-tem
                    benefit of fostering a partnership approach to employment equity
                    implementation and obvious implications for productivity.

          5.3.28.   In order to make the consultation process meaningful an employer
                    should, at the very least, make the analysis and workforce profile
                    available when consulting about its employment equity plan. The
                    consultation about the conduct of the analysis refers to the
                    procedural aspects of the analysis i.e. the methodology (i.e. if
                    surveys are going to be used how are the participants selected);
                    who will conduct the analysis and prepare the profile; what
                    information will be collected from the workforce, timeframes etc.
                     FOR PUBLIC COMMENTS

          5.3.29.   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
                    occasioned as a result of the need to consult. Such disputes can be
                    dealt with by referral to the Labour Inspectors or the Director-
                    General, who may intervene to issue a compliance order or
                    recommendation. However, it is advisable to ensure that a dispute
                    resolution procedure is agreed and becomes part of the
                    consultative forum’s brief, so that parties understand how disputes
                    regarding the adequacy of the consultation process will be
                    resolved. The Act encourages internal dispute resolution as a first
                    step. Parties can also build in private arbitration or mediation as
                    appropriate dispute resolution mechanisms. Employers are
                    required to . . . attempt to reach agreement on matters pertaining to
                    the employment equity information gathering and analysis process,
                    the preparation and implementation of the plan and the Act’s
                    reporting requirements.

          5.3.30.   The Act does not specify an employer’s obligations in the event that
                    agreement cannot be reached on these issues. Because the Act
                    stops short of requiring that consensus be reached, the inference is
                    that, absent agreement, an employer must proceed to fulfil its
                    analysis, planning, and reporting obligations. If employees are
                    dissatisfied with the employer’s efforts to comply with the Act, they
                    may invoke available complaint and dispute resolution procedures.

          5.3.31.   At minimum a designated employer can circulate its proposals in
                    relation to the three areas it is required to engage employees
                    about: the conduct of the workforce analysis, the preparation and
                    implementation of the employment equity plan and its report for
                    submission to the Department of Labour. This would constitute
                    minimal compliance with the Act, provided the employer does take
                    into account submissions made by employees. However, to ensure
                    that consultation is effective in securing the necessary buy-in from
                    employees, a more participative process should be devised which
                    would allow for meeting and regular feedback to all employees.
                    This may include setting up various levels of consultation, i.e. an
                    Employment Equity Committee and a broader forum to which to
                    report-back on developments. Employers should ideally also
                    appoint champions who would take responsibility for driving the
                    process and should determine who is ultimately accountable for the

          5.3.32.   The consultation techniques and methods used by an employer
                    would obviously vary depending on the nature of the relationships
                    with employees and trade unions, organisational culture, the level
                    of formality and hierarchy, as well as resources and capacity
                    available to facilitate and co-ordinate the consultation process. The
                    following are generic techniques that may be utilised by employers
                    and employees:

             Convening a consultative forum with legitimate
                                representatives of all designated and non-designated
                     FOR PUBLIC COMMENTS

                                groups from a cross-section of the occupational levels
                                and categories in the workplace;

             Creating a suggestion box for employees and other
                                stakeholders to contribute to;

             Sponsoring a confidential employee survey to ascertain
                                employee views on issues related to employment equity
                                and unfair discrimination;

             Displaying proposals for employment equity initiatives in
                                visible places in the workplace with opportunity for

             Holding periodic and voluntary open meetings for
                                interested employees to obtain updates on progress;

             Sponsoring mandatory meetings for employees to
                                obtain updated information on employment equity

             Hosting small group meetings between categories of
                                employees and officials responsible for employment

             Requiring each group or unit of employees to designate
                                a representative for participation in ongoing
                                consultation, planning and monitoring;

             Publishing an employment equity newsletter;

           Hiring independent consultants to elicit employee

           Facilitating employee workshops;

           Collecting employee demands for the Employment
                               Equity Plan;

           Generating continuous dialogue through building
                               employment equity into the agenda of every workplace


           5.4.1.   Recruitment, Promotion, Development and Transfer- these are
                    relevant as strategies to achieve numerical goals.

           5.4.2.   Performance management – senior management performance
                    should be measured against the extent to which they have
                    achieved their numerical goals.
                     FOR PUBLIC COMMENTS

            5.4.3.    Recruitment and selection - an employer must take cognisance
                      of numerical goals when offering employment to job applicants.

            5.4.4.    Promotions – succession plans and decisions on promotion must
                      take account of an employer’s numerical goals and ensure that
                      under-represented groups in identified categories are promoted
                      and developed.


     6.1.   SCOPE

            This section identifies some of the strategies that can be used to attract as
            wide a pool of applicants from designated groups as possible.


            Barriers in the recruitment process can often be attributed to the inability to
            attract sufficient numbers of designated groups, therefore limiting the
            applicant pool. Attracting as many applicants from designated groups as
            possible ensures that the unavailability of designated groups is not an issue. It
            also enables achieving numerical goals and accordingly promotes the
            organisation as employer of choice for designated groups.


            6.3.1.    The employer can use a number of outreach and proactive
                      mechanisms to attract designated groups. Some of these
                      mechanisms include:

                liaising actively with agencies that keep a database of
                                  individuals from designated groups, i.e. disability
                                  advocacy organisations, specialist recruitment
                                  agencies, universities and technikons, etc;

                paying existing employees a recruitment incentive for
                                  referring potential candidates from designated groups;

                positioning the employer as employer of choice for
                                  designated groups through targeted marketing and
                                  employee branding;

                undertaking market research to establish perceptions of
                                  the employer by designated groups and whether they
                                  would be amenable to working for that employer;
                     FOR PUBLIC COMMENTS

              marketing the employer’s black economic
                                empowerment, corporate social investment, affirmative
                                procurement and other community initiatives to position
                                the organisation as employer of choice in terms of race,
                                women, people with disabilities and HIV/AIDS;

              graduate hire based on establishing links with potential
                                graduates whilst still at university or school and
                                sponsoring such potential employees; attending
                                university and technikon open-days; sponsoring student

              recruiting for talent not necessarily for a specific

              reinforcing the need for candidates from designated
                                groups with recruitment agencies and reviewing
                                contracts with agencies on a regular basis according to
                                their performance in referring designated group

              head hunting (although this can have potential
                                organisational culture and other disadvantages);

             promoting interest in the organisation by vacation
                                students and interns who are then invited to apply for
                                advertised positions;

             attracting candidates through word-of-mouth and
                                organisational networking for instance at events
                                attended by managers and professionals from
                                designated groups;

             creating your own database of people from previous
                                curriculum vitas and other informal sources of


           6.4.1.   Recruitment and selection – Attracting the biggest pool of
                    applicants from designated groups enables the employer to engage
                    in preferential recruitment of suitably qualified candidates from
                    those groups.

           6.4.2.   Skills development – Where the pool of applicants available to an
                    employer consists of insufficient suitably qualified candidates the
                    employer can engage with its SETA to register a learnership for the
                    specific individual or it can design its own training programme to
                    equip the candidate with the essential skills and competencies for
                    identified positions that may become available in the future at that
                     FOR PUBLIC COMMENTS


     7.1.   SCOPE

            Recruitment and selection is the process that organisations follow to attract a
            pool of job applicants to apply for a job within the organisation and then to
            determine their suitability for the particular job through the use of various
            selection techniques such as short listing, scoring, interviews, assessment
            methods and reference checks.


            7.2.1.    Recruitment and selection is essentially about choice and therefore
                      has the potential to constitute the biggest single basis for
                      discrimination claims. Organisations who do not adhere to the
                      principles of equal treatment and equal opportunity in ensuring
                      access to employment run the risk of having complaints lodged
                      against them in respect of unfair discrimination on one or more of
                      the prohibited grounds.

            7.2.2.    Recruitment and selection is often the most important drive and of
                      the achievement of numerical targets and increasing the
                      representivity of designated groups in the workplace.

            7.2.3.    A number of areas in the recruitment and selection process can be
                      addressed to ensure anti-discrimination. These include:

                Advertising positions;

                The job application form;

                The short listing process;


                Job offers;

                Record keeping; and

                Reference checking.


            7.3.1.    As a minimum organisations should have recruitment guidelines
                      and a written statement on their affirmative action approach as it
                      relates to recruitment. This will assist organisations in dealing with
                      any discrimination claims that may arise out of recruitment
                     FOR PUBLIC COMMENTS

          7.3.2.   Organisations should ideally have a written recruitment and
                   selection policy, practice, procedure or guidelines that outlines their
                   approach. This document should:

             reflect the values and goals of the organisation’s
                               employment equity policy or ethos; and

             include a statement relating to affirmative action and
                               the organisation’s intention to redress past inequalities
                               by giving preference to suitably qualified people from
                               designated groups until such time as the organisation’s
                               employment equity targets or objectives have been
                               met. The recruitment policy should state clearly that
                               non-designated groups would not be barred from
                               applying for employment or from eligibility for
                               promotions but may state that preference will be given
                               to designated groups. Thereafter selection criteria
                               would be based exclusively on candidates meeting the
                               requirements of the job i.e. opportunities for
                               employment would then be open equally to candidates
                               from all designated groups once employment equity
                               targets have been met.

          7.3.3.   If an organisation utilises the services of recruitment agencies, it
                   should make the recruitment agency aware of its affirmative action
                   policy. Notwithstanding the use of an employment agency the
                   organisation remains liable for any claim that an applicant for
                   employment may make concerning recruitment and selection.

          Advertising positions

          7.3.4.   When advertising positions organisations should refer to their
                   employment equity policy or ethos and, if appropriate, any
                   affirmative action policy;

          7.3.5.   Job advertisements should accurately reflect the job description
                   and competency specifications;

          7.3.6.   Organisations may consider placing all advertisements for positions
                   internally even if a job is being advertised externally so that current
                   employees are aware of the opportunities that exist within the
                   organisation and can apply should they believe that they meet the
                   criteria. An organisation however, may elect not to advertise a
                   position internally if it does not have a diverse workforce and
                   wishes to increase the diversity of its workforce profile;

          7.3.7.   Organisations may state, when advertising positions that they will
                   give preference to employing members of designated groups.
                   However, preference is not intended to imply that the process of
                   recruitment excludes non-designated groups. The process of
                   recruitment must still be fair. Preference is distinct from ear marking
                   or job reservation where a job is effectively reserved for a particular
                   designated group. Ideally all positions should be advertised in the
                     FOR PUBLIC COMMENTS

                    same way to avoid the perception being created amongst
                    employees that some positions are “affirmative action” positions
                    and others are not;

          7.3.8.    Organisations should, where possible place their job
                    advertisements in a variety of different media to ensure that they
                    will be accessible to all members of the population particularly
                    those from designated groups. Organisations should consider
                    reviewing readership and listenership patterns when selecting the
                    most appropriate media in which to advertise positions;

          7.3.9.    Placing advertisements exclusively on the internet and requesting
                    only on-line applications may be discriminatory against applicants
                    from designated groups who may not have easy access to the

          Job Application Forms

          7.3.10.   A job application form is a form developed by an organisation as
                    part of the process of selecting a suitable job applicant for a
                    position. Organisations may require applicants to complete
                    application forms.

          7.3.11.   The purpose of a job application form is to:

             standardise the information organisations receive from
                                job applicants. This prevents selectors for a job
                                unconsciously short listing applicants who share
                                common ground with them which may not be relevant to
                                the criteria for the job;

             ensure that the information received from job applicants
                                focuses on the requirements of the job and not on
                                discriminatory grounds;

             obtain biographical information to provide an
                                organisation with an easy mechanism to monitor
                                applications from various designated groups and
                                ascertain the work experience of job applicants
                                applying for a job. The job application form should state
                                that biographical information will only be used for
                                analysing biographical data for employment equity

          Short-listing of Job Applicants

          7.3.12.   Short listing is a process in which the organisation considers all job
                    applications, including each applicant’s curriculum vitae and/or job
                    application form. The organisation should place those job
                    applicants who meet the criteria set by the organisation on a short
                    list so that they are eligible to continue to the next round in the job
                    selection process.
                     FOR PUBLIC COMMENTS

                7.3.13.     Before commencing the process of short-listing job applicants the
                            organisation should decide on the system or approach it will use to
                            short list applicants. This approach or system may include:

                       a marking system where the organisation allocates
                                          points to the various job criteria. The organisation
                                          should mark each job applicant against these criteria
                                          based on the information provided by the job applicant
                                          in their curriculum vitae or application form; and

                       a cut-off score system where the organisation sets a
                                          minimum score that a job applicant must achieve,
                                          (obtained using the marking system), to be considered
                                          further in the selection process; or

                       Guidelines of some form that can be used as proof of
                                          how the shortlisting decision was made e.g. minutes of
                                          the shorlisting meeting;

                7.3.14.     The organisation should involve more than one person in the
                            process of short-listing job applicants, to reduce the possibility of
                            individual bias impacting on the decision.

                7.3.15.     Ideally an employee from the Human Resources department
                            should assist with the short-listing process.

                7.3.16.     If the organisation has outsourced the shortlisting process it must
                            ensure that the manner in which this is done by the contractor is in
                            line with its recruitment policy, employment equity and affirmative
                            action policy.

                7.3.17.     Only evidence from the application form and/or the job applicant’s
                            curriculum vitae should be used during the short-listing process.
                            The organisation should not rely upon second hand knowledge or
                            assumptions about what type of work the applicant may be able to

                7.3.18.     An organisation should ensure that it short lists as many suitably
                            qualified applicants from designated groups as possible.

                7.3.19.     Suitably qualified applicants must meet the minimum or essential
                            job10 requirements as well as the inherent requirements11 of the job.

                7.3.20.     When short-listing, an organisation may decide to include those job
                            applicants from designated groups who meet most but not all of the

   An essential job requirement is a skill, knowledge, experience or behaviour requirement that is
necessary to perform the job. For example, functional literacy in order to read instructions in a
   An inherent requirement refers to the personal or immutable physical characteristics that are
required of a position, for example a female obstetrics nurse nursing mothers after their birth of their
babies. Organisations should not use so-called inherent requirements of a position as a way of
discriminating. Inherent requirements must be genuine, legitimate and authentic.
                     FOR PUBLIC COMMENTS

                    minimum requirements for the job and who may have the potential
                    to develop to meet all the job requirements within a specified time

          7.3.21.   Shortlisting may be aligned to non-traditional hiring strategies
                    where these are present. Organisations may receive applications
                    from candidates who do not necessarily meet the criteria for the
                    particular vacancy for which they applied but who may be hired on
                    the basis of their talent and potential even though a suitable
                    vacancy does not exist. These applications should be set aside and
                    considered by the person in the organisation responsible for the
                    hiring of such talent.


          7.3.22.   Most organisations conduct interviews with job applicants. The
                    interviews are a selection tool that provides an organisation with an
                    opportunity to meet a job applicant face to face and ask questions
                    related to the applicant’s ability to perform the job.

          7.3.23.   Organisations should try to include the same people in the short-
                    listing and interviewing processes, as they will be familiar with the
                    requirements of the job.

          7.3.24.   An equitable panel with inclusive representation from the three
                    designated groups should carry out the short listing and conduct
                    the interviews for the organisation with the job applicants.

          7.3.25.   Organisations should ideally provide training or guidance to the
                    panel conducting the interviews on:

                     interview skills;

                     the scoring system if this is utilised by the

                     the organisation’s employment equity and
                                          affirmative action policy; and

                     issues relating to diversity, which involve
                                          recognising differences among employees.

          7.3.26.   Organisations should 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 that is interviewed to
                    determine the applicant’s suitability for the job. The interview
                    questionnaire should be based on the job description and
                    competency specification for the position. Organisations should
                    ideally regularly audit their interview questionnaires to ensure that
                    they do not contain questions that are potentially discriminatory.

          7.3.27.   An organisation should consistently and objectively assess all job
                    applicants that it interviews using as a basis the job description,
                     FOR PUBLIC COMMENTS

                    competency specification and scoring system if used. The
                    organisation should allocate the same amount of time for each
                    candidate that it interviews and each candidate should be asked
                    the same or similar questions. This ensures consistent treatment of
                    all job applicants interviewed.

          7.3.28.   If a scoring system is used, ideally a standardised scoring system,
                    the organisation must assess the weightings allocated to ensure
                    that there is a balance between meeting job requirements and
                    meeting numerical goals.

          7.3.29.   Clear definitions should exist as to the profile of the applicants the
                    organisation wishes to recruit as this will assist in determining a
                    common understanding of “culture fit” of candidates who are

          Making the job offer

          7.3.30.   Organisations should ensure that a realistic job preview is provided
                    to the candidate when the offer is made to ensure that the
                    organisation’s and the candidate’s expectations of what the job will
                    entail are congruent. This is to facilitate the retention of employees
                    from designated groups by effectively managing expectations
                    before the candidate accepts a position within the organisation i.e.
                    it must be clear to the candidate what s/he is expected to do, what
                    his/her status will be within the organisation and what s/he will be
                    responsible for;

          7.3.31.   The organisation may consider conducting “exit” type interviews
                    with candidates from designated groups who do not accept job
                    offers to establish the reasons for this and to what they relate e.g.
                    remuneration, job content, etc so that the necessary steps can be
                    taken to eliminate barriers that may exist.

          Record keeping

          7.3.32.   The organisation should keep copies of all application forms and
                    documents relating to each stage of the recruitment process,
                    including short-listing and interview notes, for a minimum of nine
                    months after the position has been filled. An organisation may
                    require these records if a job applicant challenges a recruitment
                    decision. Such a challenge must be brought within six months of
                    the decision to appoint.

          7.3.33.   The organisation should ideally keep statistics on its recruitment
                    process as a core information point for building its employment
                    equity strategy and for managing the attitudes and actions of
                    managers. These statistics should include information on:

              the demographic details of candidates who apply, those
                                 who are shortlisted, interviewed and those who are
                                 made offers;
                     FOR PUBLIC COMMENTS

              the demographic details of candidates in relation to
                                 shortlisting, interviewing and job offers made per
                                 department / manager to establish which sections within
                                 the organisation are advancing the employment equity
                                 profile of the organisation, those that are not and the
                                 reasons for it so that any barriers that may exist can be

              who has been involved in the above shortlisting,
                                 interview and job offer process.

           Reference checks of job applicants

           7.3.34.   The purpose of an organisation conducting a reference check on a
                     job applicant is to verify information provided by a job applicant
                     during the selection process.

           7.3.35.   The same number and type of reference checks must be
                     conducted on all applicants regardless of their designated group.

           7.3.36.   When conducting a reference check on a job applicant, an
                     organisation should focus on the applicant’s ability to do the job in
                     question in view of the job description and competency
                     specification for the position and not seek to obtain any arbitrary or
                     irrelevant information unrelated to the position.

           7.3.37.   An organisation should avoid conducting general character
                     references unrelated to the job.

           7.3.38.   An organisation should only conduct integrity checks, such as
                     verifying the qualifications of a job applicant, contacting credit
                     references and investigating whether the applicant has a criminal
                     record if related to the requirements of the job.


           7.4.1.    Implementing Employment Equity - Recruitment and selection
                     must be aligned to the organisation’s affirmative action strategy, as
                     reflected in its Employment Equity Plan, which sets out the detail in
                     relation to the numerical targets set for different designated groups
                     based on occupational categories and levels where designated
                     groups are under-represented.

           7.4.2.    Disability - In the context of disability there are specific recruitment
                     and selection issues that arise. In particular, an organisation is
                     required to make reasonable accommodation for the needs of job
                     applicants with disabilities. Organisations should seek guidance
                     from the Code of Good Practice on the Employment of People with
                     Disabilities and the Technical Assistance Guidelines on Disability.

           7.4.3.    Attraction and Retention - The ability of an organisation to attract
                     employees from designated groups will depend on a combination of
                     factors which include: recruitment and selection practices,
                     FOR PUBLIC COMMENTS

                       competitive benefits, career opportunities, sign on bonuses,
                       reputation and image of the organisation and bursaries and

            7.4.4.     Assessments - Should an organisation make use of assessments
                       during the selection process they should refer to the relevant
                       section of this Code.


     8.1.   SCOPE

            Induction refers to the process where an employer introduces a new
            employee to the organisation’s values, vision and mission, the applicable
            policies, practices and procedures, as well as the working environment and


            A carefully planned and implemented induction process will ensure that all
            new employees, and in particular designated groups, are effectively integrated
            into the organisation 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 marginalised and more likely to thrive in
            the organisation.


            8.3.1.     The induction process is an opportunity to convey the
                       organisation’s values and ethos, and to emphasise its commitment
                       to equity and diversity. This can occur not only at the level of
                       introducing the new employee to policies that prohibit
                       discrimination, but also through ensuring that existing employees
                       and leadership demonstrate the supportive behaviour that forms
                       part of the organisational culture. In addition, during induction
                       employees should be informed about the mechanisms for
                       grievance resolution and the approach to discipline for misconduct,
                       including discrimination.

            8.3.2.     The induction process can be useful in demonstrating leadership
                       commitment to employment equity, through creating an opportunity
                       to send the appropriate messages 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 in the organisation.

            8.3.3.     The language used in the induction process can be indicative of
                       organisational culture and should be as inclusive as possible, and
                       should avoid undue references to sporting analogies, derogatory
                       remarks or other behaviour that reflects bias or stereotyping.
                     FOR PUBLIC COMMENTS

               8.3.4.     To ensure that the induction process contributes to effectively
                          integrating new employees from designated groups into the
                          organisation, the employer should ideally ensure that managers
                          and human resources staff receive training on the induction
                          process and their role in inducting new employees. In addition to
                          formal training managers should ideally be issued with a checklist
                          or guidelines which they are expected to apply to all new
                          employees in a consistent manner. Emphasising consistent
                          treatment of new employees will ensure that managers guard
                          against conduct that can contribute to marginalisation of
                          employees12. Managers should ideally also receive training on
                          avoiding stereotypes or assumptions about new employees, based
                          on their personal or physical characteristics, their membership of
                          the designated groups, or other arbitrary criteria which can be
                          perceived as unfair discrimination.

               8.3.5.     In addition, the employer should ensure that on induction every
                          new employee receives a comprehensive set of the applicable
                          human resource policies and procedures in the predominant
                          language used in that workplace, and that the employee
                          understands. Reasonable accommodation should be made for
                          employees with disabilities in terms of the form and language of the
                          policy manual.

               8.3.6.     A positive measure often used in the induction process is to assign
                          to the new employee a work colleague from the same department
                          or section, who will serve as an informal guide or “buddy” to enable
                          the new employee to become familiar with the workplace.

      8.4.     LINK TO OTHER TOPICS

               8.4.1.     Training and development and work assignment – Expectations
                          of the new employee should be dealt with upfront by clarifying the
                          organisation’s policy and procedure in this regard.

               8.4.2.     Elimination of barriers – Proper induction will ensure that the
                          employee does not experience barriers in socialising and
                          networking that impact on his or her prospects of advancement.
                          The integration of employees from designated groups, particularly
                          where they are in the minority, must be a conscious effort that
                          extends beyond the induction process and should include inclusive
                          informal or non-work related activities.

               8.4.3.     Elimination of unfair discrimination - The organisational culture
                          should be conducive to raising and dealing with issues of unfair
                          discrimination or harassment, and should promote a common
                          understanding of what discrimination means and how it will be dealt

  An example would be a white male manager inviting a white female employee to lunch as part of
her induction, whilst interacting formally in the workplace with a new African female employee.
                     FOR PUBLIC COMMENTS

            8.4.4.    Grievance resolution - The grievance procedure must be
                      conducive to raising issues that arise in the induction process, and
                      failing this a separate informal procedure for employment equity
                      complaints and grievances should be developed.


     9.1.   SCOPE

            Probation involves the trial period for a new employee during which the
            employer assesses the employee's ability and skills to function in the position
            to which she/he has been appointed and decides whether to offer the
            employee a permanent position.


            The probation period can either undermine or support an employee from a
            designated group, particularly where that employee is under-represented in
            that workplace. The employer should ensure that it is not patronising towards
            designated groups nor are they set up for failure by not providing the
            necessary organisational support. This requires consideration to be given to
            the initial work allocation to ensure that the new employee can cope with the
            demands of the new workplace.


            9.3.1.    The employer should avoid making subjective judgements about
                      the new employee’s “fit” into the workplace as a basis for the
                      decision whether or not to offer the employee a permanent position.

            9.3.2.    The employer should ensure that probationary employees from
                      designated groups are not subjected to unfair discrimination. This
                      can be done by ensuring that they are treated fairly and
                      consistently by managers in terms of a written probation policy that
                      clearly sets out, amongst others, the expected performance
                      standards; the frequency and form of performance reviews; and the
                      procedures the probationary employee should comply with to raise
                      problems or grievances and the nature of support, mentoring,
                      training and development that should be made available to the

            9.3.3.    The employer should ensure that managers understand the need
                      for consistent treatment of all probationary employees in order to
                      avoid perceptions of unfair discrimination.

            9.3.4.    Where an employee from a designated group requests reasonable
                      accommodation during this period, the employer should endeavour
                      to provide this unless it causes undue hardship. Failure to
                      accommodate can result in unfair discrimination.

            9.3.5.    Managers should also provide regular supervision and guidance to
                      probationary employees, including training and counseling where
                     FOR PUBLIC COMMENTS

                          relevant to improve performance. Managers should keep records of
                          their discussions with probationary employees, as these may
                          provide useful data about employee movement in the employment
                          equity planning and measurement process. If the employer has a
                          human resources department, this department should be informed
                          of issues concerning the probationary employee’s performance.

               9.3.6.     The practices audit can serve to identify barriers in the probationary
                          process that impact on designated groups, and strategies to
                          remove these barriers should then be developed and incorporated
                          in the Employment Equity Plan.

               9.3.7.     Where an employee from a designated group who falls within the
                          category of a suitably qualified employee who is required to acquire
                          certain specified skills and competencies during the probationary
                          period, the employer should ensure that the necessary support,
                          training, materials and other requirements are available to enable
                          the employee to fulfil these requirements. This may require the
                          appointment of a mentor to support the employee and facilitate his
                          or her learning, according to clear and agreed objectives, during
                          this period.

               9.3.8.     Record-keeping – the organisation should consider keeping and
                          tracking data concerning the numbers of employees from
                          designated groups who are not appointed at the end of their
                          probationary period compared to employees from non-designated
                          groups. The trends may indicate the existence of problems in a
                          particular department or emanating from a particular manager,
                          which can then be dealt with in the employment equity process. To
                          the extent that this is possible, exit interviews should 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 in this context may enable an
                          employer to identify problems with retention of designated groups.

      9.4.     LINK TO OTHER TOPICS

               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 are conducted.


      10.1.    SCOPE
   This section has drawn from the UK Statutory Code of Practice on Racial Equality in Employment
issued by the Commission for Racial Equality – May 2004
                     FOR PUBLIC COMMENTS

                  Medical and psychological assessments describe a range of exercises used
                  by organisations for recruitment and development purposes to determine an
                  applicant or employees personality profile and emotional or behavioural
                  profile. Examples of tools commonly used include personality inventories;
                  psychological profiling; honesty, values and integrity assessments; role-
                  playing activities; in-baskets; cognitive construct inventories; and aptitude
                  tests amongst others. These tools are used in various combinations with one
                  another and other processes such as interviews. These tools and methods
                  must be administered by psychometrists, registered psychologists and/or
                  certified practitioners.


                  10.2.1.       The Act requires assessments to be free from unfair discrimination
                                based on the prohibited grounds. Tests which directly or indirectly
                                discriminate on these grounds are likely to be more difficult for the
                                affected groups to complete accurately. For example written tests
                                can be expected to be more challenging for those with less formal
                                education to complete, or those who have limited prior experience
                                in writing tests, or for people who are taking the test in a language
                                which is not their first language.

                  10.2.2.       An assessment can be said to be directly discriminatory when it
                                has the effect of excluding employees from designated groups on
                                the basis of one or more of the prohibited grounds. Indirect
                                discrimination, however, is the more likely outcome. This occurs
                                when, on average, the majority of a particular group assessed
                                scores below the minimum required compared to other groups or

       10.3.      POLICY AND PRACTICE

                  10.3.1.       The employer who uses medical and psychological assessments
                                should preferably ensure that a written policy, practice and
                                procedure, or a guideline exists in the workplace, which identifies
                                the purpose, context, methods and criteria applicable to selecting
                                and conducting assessments.

                  10.3.2.       The employer should ensure that assessments used are valid,
                                reliable and fair14, so that no group or individual is disadvantaged
                                as a result of the assessment. Furthermore, bias in the application
                                of the assessment should be eradicated. The test should ideally
                                match the job in question and measure as closely as possible the
                                level of the skills and the competencies required for the job which

  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 by the employer. This can include the test, integration of data, recommendations
based on these data or the final decision made by line management.
                     FOR PUBLIC COMMENTS

                    are included in the job specification. 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 racial group, should be used. By
                    showing that those who perform poorly on the test also perform
                    poorly on the job, the validation of a test confirms that rejecting low
                    scorers is reasonable.

          10.3.3.   Psychological test users and administrators should be qualified and
                    registered with the Health Professions Council of South Africa.
                    Assessors should be trained to evaluate and interpret evidence and
                    behaviour objectively against the skills and abilities required for the
                    job, and must be able to justify their decisions. The selection
                    process should also minimise the opportunity for assessors to
                    make subjective or arbitrary judgments that could, deliberately or
                    unconsciously, work to the advantage of one designated group
                    over another. Assessors should make sure they do not assess test
                    takers against each other, but against the competencies for the job.
                    Assessors should be able to justify the level at which derived
                    scales or scores are set, (e.g., qualified, marginal or unqualified),
                    and these should be consistent across different assessments.

          10.3.4.   No single attribute, such as ‘leadership’ or ‘fit’, should dominate the
                    assessment procedure.

          10.3.5.   Special care should be taken in terms of the language of instruction
                    (e.g., with employees whose first language is not English) to make
                    sure that the test and administration instructions are understood
                    correctly. Tests that are fair for English speakers only may present
                    problems for people with English as a second language. Fair
                    testing practices may entail administering tests in the language that
                    the employee is sufficiently competent. Although this is difficult to
                    achieve as currently there are insufficient psychologists,
                    psychometrists and psycho technicians in South Africa who are
                    fluent in many African languages, the onus should be on the
                    assessor (psychologist or psychometrist) to ensure that assistants
                    are used who are suitably trained to be able to assist with giving
                    the test instructions, recording and subsequently translating verbal
                    tests responses, and generally assisting during the test
                    administration process.

          10.3.6.   All employees or job applicants assessed against the same criteria,
                    without exception, should undertake the same set of tests

          10.3.7.   Assessment notes, records and forms should be kept for at least a
                    year, which is the general period of validity for these assessments.

          10.3.8.   Organisations should ensure that reasonable accommodation is
                    made for employees or job applicants where required, and that
                     FOR PUBLIC COMMENTS

                          inadvertent discrimination does not occur in the arrangements for
                          the administering the tests or using assessment centres15.

             10.3.9.      The results of tests may be used to consider possible skills
                          development and training programmes for people from designated
                          groups who are under- represented in certain occupational
                          categories and levels in the enterprise, and who consistently fail to
                          meet the minimum criteria for jobs.

             10.3.10.     Assessments can be used proactively to identify employees who
                          may be suitably qualified but lack one or two essential
                          requirements for a position, i.e. employees with potential. This gap
                          can then be filled by means of appropriate training and
                          development in order to enable the employee to acquire all the
                          essential requirements, and to accordingly become eligible for
                          appointment or promotion.

             10.3.11.     Organisations should take steps to ensure that all employees
                          invited for assessments or assessors treat interviews with equal
                          respect, and that no arbitrary comments are made prior to or during
                          the test that may lead to the impression that a stereotype or bias
                          exists on the part of the psychologist or psychometrist
                          administering the test.


             10.4.1.      Recruitment and Selection – Medical and psychological
                          assessments are relevant to determining whether an applicant
                          (either a new entrant or an existing employee applying for
                          promotion) is suitably qualified for appointment. It is important that
                          assessments are not conclusive but are one of the mechanisms
                          used to identify applicants or employees who are suitably qualified.

             10.4.2.      Skills development – Medical and psychological assessments can
                          be used to identify potential amongst employees or job applicants
                          from designated groups, which links to affirmative action in training
                          and development. The gaps in the employee or applicant’s skills
                          and competencies can then be eliminated by enabling the
                          individual to undergo specific development or training.



       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).
                     FOR PUBLIC COMMENTS

       11.1.      SCOPE

                  For the purposes of this section of the Code, terms and conditions of
                  employment refer to working time and rest periods; leave of all kinds16; rates
                  of pay, including overtime rates; and benefits such as motor vehicle
                  allowances, retirement schemes and medical aid.


                  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.
                                Seniority or age could constitute justifiable grounds for the
                                differential allocation of benefits although the employer should
                                ensure that the criteria for indirect or adverse impact discrimination
                                do not apply17.

       11.3.      POLICY AND PRACTICE

                  11.3.1.       Every organisation is required by the Act to audit its terms and
                                conditions of employment to identify whether they contain any
                                direct or indirect discrimination or barriers. Thereafter all changes
                                to terms and conditions of employment should be monitored to
                                ensure both legal compliance and absence of unfair discrimination
                                and other barriers. Perceptions concerning the non – discriminatory
                                application to all employees should also be regularly tested by way
                                of practices audits, as they may indicate inconsistent treatment by
                                managers of designated versus non-designated groups, or lack of
                                awareness of policy concerning eligibility for benefits, for instance.
                                These can then be addressed through appropriate awareness
                                raising initiatives and other barrier removal measures that can also
                                form a component of the applicable Employment Equity Plan for
                                that organisation.

                  11.3.2.       Organisations should provide training, information and literature for
                                trade union representatives and employees on the applicable terms
                                and conditions and available benefits.

                  11.3.3.       Maternity leave should not result in loss of benefits for employees
                                upon return to employment. Entitlement to remuneration during
                                maternity leave is a matter for negotiation and agreement between
                                the employer and employee (or her trade union). Benefits that
                                should continue to accrue include participation in share schemes,
                                medical aid and pension fund contributions ordinarily paid by the

   Leave includes annual leave, sick leave, maternity leave and family responsibility leave.
  These are: neutral criteria, adverse or unjustifiable differential impact on the prohibited grounds referred to
section 6(2) of the Employment Equity Act, and lack of business or other rational justification for use of the
                     FOR PUBLIC COMMENTS

                        employer, the use of a company car or mobile phone (unless
                        provided for business use only) and other similar benefits.

            11.3.4.     The organisation should also make reasonable accommodation of
                        the employee’s need for additional leave, either in the form of
                        annual or unpaid leave before or after maternity leave, where this
                        accommodation will not cause undue hardship.

            11.3.5.     Organisations should provide an accessible, supportive and flexible
                        environment for employees with family responsibilities. Sufficient
                        family responsibility leave should be permitted for both parents,
                        including partners in a same-sex relationship and should include
                        leave for biological children as well as adopted or foster children,
                        and if necessary, should include leave for antenatal care as well.

            11.3.6.     While all employees should have access to the same employment
                        conditions regardless of their family responsibilities, employers
                        should strive for flexibility in hours and conditions of work in order
                        to accommodate the roles of employees with family responsibilities.

            11.3.7.     Organisations should examine their use of fixed term contract18
                        employees and the terms and conditions of employment upon
                        which they are hired, to ensure that fixed term employees are not
                        treated less favourably than permanent employees. Fixed term
                        contracts can serve as an effective affirmative action measure for
                        where the employer provides training or learnerships for the
                        employee in order to enable them to develop skills and
                        competencies that they would otherwise not be able to acquire.
                        These contracts can also undermine employment equity. This
                        would occur where the employer tends to appoint certain groups of
                        employees (i.e. black people, lower level employees, women) to
                        fixed term contracts as a matter of practice. This would constitute
                        indirect discrimination in that the neutral rule (appointing on a fixed
                        term) applies to all employees but impacts adversely on these
                        groups unless there is an objective justification. Objective
                        justification would include, for example, development for a specific
                        position. In the context of succession planning and career
                        development for designated groups, and in order to achieve
                        numerical targets, employers should place designated groups on
                        indefinite rather than fixed-term contracts, subject to effective
                        performance management.


            11.4.1.     Remuneration - An employer must provide equal pay for equal
                        work or for work of equal value. Differences in pay can be based on

              A 'fixed term contract employee' is one who is employed on a contract where the end of the
            employment contract or relationship is determined by an objective condition, such as the
            reaching of a specific date, completing a specific task, or the happening of some or other
            agreed, clearly ascertainable event.
                     FOR PUBLIC COMMENTS

                           seniority, merit or other objective factors, but not on prohibited or
                           arbitrary grounds.

                11.4.2.    Retention - Favourable terms and conditions of employment for
                           employees from designated groups can serve as an affirmative
                           action measure to promote attraction and retention, but should be
                           used with caution as a justified affirmative action measure failing
                           which this can cause organisational problems. Different terms and
                           conditions would be justified as a retention tool where they are
                           based on recognition of different market value or scarce skills, but
                           must be subjected to consultation and inclusion in the Employment
                           Equity Plan of the organisation as a legitimate and credible
                           affirmative action measure.

                11.4.3.    Working environment – Flexibility in terms and conditions (i.e.
                           working hours and schedules, work from home options, job sharing,
                           career breaks etc) are examples of working environment issues
                           that can be conducive to retention of designated groups, and can
                           be effectively used as affirmative action measures.


      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 that person working for any
                other person.19


                12.2.1.    Remuneration differentials can most commonly constitute direct
                           unfair discrimination, where an employer tends to pay black or
                           female employees less than white or male employees doing the
                           same or equivalent work. In this context the difference in pay would
                           be based on gender or race stereotypes. Remuneration
                           discrimination can also be indirect or systemic, because it stems
                           from remuneration policies, procedures and practices that have an
                           adverse or disparate impact on women, black people and people
                           with disabilities. This form of discrimination stems from the
                           systematic under valuation of work performed by certain groups of
                           employees. In this regard, jobs traditionally performed by women
                           (for instance, service and administrative jobs) are consistently
                           under-valued compared to equivalent jobs done by men.

                12.2.2.    Remuneration should accordingly be based on objective criteria
                           that can be justified, either as affirmative action measures or as
                           linked to the inherent requirements of a job. This would include, for
                           example, paying a premium for a senior black employee or a
                           scarce skill. In this context remuneration differentials can serve as

  The meaning of remuneration is further clarified by the Determination issued by the Minister of
Labour in terms of Section 35 of the Basic Conditions of Employment Act.
                     FOR PUBLIC COMMENTS

                      a legitimate affirmative action measure implemented in the interests
                      of attraction and retention of designated groups.


            12.3.1.   It is recommended that all employers should ideally develop a
                      written remuneration policy, or at the very least written guidelines,
                      to ensure that clear rules exist about how remuneration is

            12.3.2.   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

            12.3.3.   Employers should also ideally conduct regular practices audits to
                      identify lack of awareness about applicable remuneration criteria
                      and perceptions of discrimination in remuneration.

            12.3.4.   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.

            12.3.5.   Job evaluation systems should be neutral as these are often the
                      basis on which remuneration differentials emerge.

            12.3.6.   Remuneration should ideally be based on the value of the post to
                      the organisation. In this regard the following factors should be
                      taken into account:

               Performance and Outputs: the employee’s outputs,
                                  measured by the performance management process,
                                  should carry the most weight in determining individual
                                  remuneration levels. Consistently high performance
                                  with achievement of outputs over a long term should
                                  ensure high remuneration.

               Employee potential: This involves estimated ability and
                                  competence, as well as the capacity to develop 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 deduced from
                                  previous outputs/experience. These factors could be
                                  incorporated into determination of remuneration, for
                                  instance by incentivising employees to acquire
                                  additional skills and competencies and rewarding

            12.3.7.   Incentives and bonuses, used appropriately, can be key drivers for
                      employment equity, by contributing to retention.
                     FOR PUBLIC COMMENTS

            12.3.8.   Employers should ideally also take measures to progressively
                      reduce income differentials to more proportionate levels through:

               collective bargaining;

               compliance with sectoral determinants made by the
                                  Minister under section 51 of the Basic Conditions of
                                  Employment Act 1997,

               researching and applying appropriate proportionality
                                  benchmarks; and

               paying incentives and bonuses for skills development.


            12.4.1.   Performance Management – Performance should ideally be
                      linked to reward in order to encourage objectivity with elimination of

            12.4.2.   Recruitment and Selection - In order to attract employees from
                      designated groups an employer could offer market related salaries
                      and benefits.


    13.1.   SCOPE

            13.1.1.   A job description describes the role and duties of the job and is
                      made up of two main sections:

               a description of the outputs of the job (what the job
                                  exists to do). This description should provide an
                                  accurate and current picture of what tasks make up a
                                  job and should not include incidental or trivial tasks. It
                                  should outline the job’s location, purpose,
                                  responsibilities, authority levels, supervisory levels and
                                  interrelationships between the job and others in the
                                  same area; and.

               a description of the inputs of the job (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.

            13.1.2.   Employer may find it useful to 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.
                     FOR PUBLIC COMMENTS


            A job description should ideally clearly state the essential and inherent
            requirements of the job. These are the minimum requirements that the
            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
            and 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.


            13.3.1.   In order to ensure that job descriptions refer only to the essential
                      and inherent job requirements they should comply with following

               Each task or duty is essential to be able to perform the
                                  job and is not overstated;

               The job description is free of jargon and is written

               The competency specification includes only criteria
                                  essential to perform the duties, is objective, and avoids
                                  subjective elements such as ‘enthusiasm’ or ‘sociability’
                                  which can be influenced by stereotyping or can be
                                  interpreted differently by different managers in the
                                  recruitment process;

               Arbitrary experience or formal qualifications are not

               Criteria do not disadvantage employees from
                                  designated groups (for instance requiring a degree from
                                  a specific university).

            13.3.2.   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. Certain job descriptions may also be
                      specifically designed for attracting and developing designated
                      groups by characterising them as “development positions”,
                      although this can result in the individual being stereotyped.

            13.3.3.   The job description should ideally be capable of being flexibly
                      interpreted in the interests of promoting affirmative action. In this
                      regard an employer may list all the minimum or essential
                      requirements that meet the threshold. Where an employee scores
                      just below the threshold and requires a maximum additional
                      number of skills or competencies, the discretion of the employer
                     FOR PUBLIC COMMENTS

                      can be used to appoint the individual as a trainee, subject to
                      acquiring the additional requirements to meet the threshold within a
                      specific period of time and with the necessary mentoring, training
                      and support.


            13.4.1.   Recruitment and selection - Job descriptions may either advance
                      or undermine employment equity depending on how they are
                      written. Flexible job descriptions may aid recruitment of employees
                      from designed groups in order to create equitable representation.
                      On the other hand, rigid and inflexible job descriptions may operate
                      as a barrier to attraction or may exclude designated groups with

            13.4.2.   Performance management – Clarity of job descriptions lends itself
                      to setting clear performance objectives in an employee’s career
                      development plan and contributes to objective management of
                      performance. This will avoid perceptions of unfair or discriminatory
                      treatment in performance.

            13.4.3.   Skills development – A clear job description enables identification
                      of skills and competency gaps that may be met through appropriate
                      training and development interventions to enable the employee to
                      acquire all the minimum or essential requirements for an existing
                      position and thereafter for a promotion or transfer to a more senior


    14.1.   SCOPE

            In most workplaces subjective decisions are made as to which employee will
            attend an overseas conference or get to work on an exciting project or for a
            major client. Where these decisions are made on prohibited or arbitrary
            grounds (e.g. race or gender) they constitute unfair discrimination, particularly
            where a pattern can be discerned in the way in which work is allocated, and
            who gets access to certain types of work, projects or opportunities.


            Unfair direct and indirect discrimination often occur as a result of the way in
            which work is allocated in a workplace. This can take the form of white or
            male employees being offered more interesting assignments n overseas
            conference or work (for instance, the opportunity to work overseas or on an
            exciting project), based on the discretion exercised by a senior manager in
            relation to allocating work and work–related opportunities. Where job
            assignments are based on prohibited grounds or arbitrary characteristics, they
            can result in perpetuating discrimination and undermining employment equity.
            Discrimination in job assignments usually occurs where there is informal
            mentoring by a manager who is perceived to favour a particular employee.
                     FOR PUBLIC COMMENTS


            As part of the policy and practices audit, the employer should identify whether
            any unfair discrimination occurs in the ability of all employees to access
            opportunities. A written policy should be developed to provide objective
            criteria or guidelines for determining who gets access to specific work-related
            opportunities that mat arise, for instance, attending an event with an important
            client or attending an overseas conference. Implementation of the policy
            should occur to ensure that managers are not acting contrary to it in the way
            in which they exercise their discretion. Employers should guard against
            conduct that perpetuates perceptions of favouritism and could lead to
            allegations of unfair discrimination. Access to all opportunities should occur on
            an objective and fair basis, to ensure that such perceptions do not arise, and
            where they arise they should be dealt with effectively and expeditiously.
            Employees should also monitor behaviour of managers in relation to job
            assignments, particularly where certain trends can be determined, as these
            may indicate the existence of indirect discrimination.


            14.4.1.   Recruitment and selection – During this process, and to the
                      extent that it is possible, the employer should deal with the possible
                      job-related opportunities that may arise, so as to deal with any
                      expectations the employee may have.

            14.4.2.   Induction - The employer should explain, during the induction
                      process, the policies or guidelines that apply in relation to how work
                      or opportunities are allocated.

            14.4.3.   Job analysis and job descriptions – Where a clear job
                      description exists, it will ensure that no expectations are raised
                      regarding access to opportunities, and in relation to the work to be

            14.4.4.   Performance management – Access to opportunities and work
                      assignments that are considered to be glamorous or “plum” can be
                      done objectively by ensuring that they are linked to the career path
                      of the employee, and arise from formal and regular performance
                      management. Where access, say to overseas or local conferences,
                      is based on performance and considered to be a reward, this
                      should be clearly communicated to the employee and to others to
                      ensure that no misperceptions arise, which could give rise to
                      allegations of unfair discrimination.

            14.4.5.   Retention – In certain instances allowing certain employees to
                      access 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 black managers in allocating
                      these opportunities. However, this should be used with caution as it
                      can have significant organizational implications and can cause
                     FOR PUBLIC COMMENTS

                           resentment where the objectives of such a strategy are not clearly
                           understood or communicated.

                 14.4.6.   Skills development – Access to opportunities and work
                           assignment can form part of an employee development plan, but
                           also of the workplace skills plan. In this context, it forms a feature of
                           the organisation’s development and training objectives for
                           employees from designated groups, and can be seen to be
                           objective and linked to a strategic employment equity plan and
                           human resources plan. This will remove the arbitrariness that can
                           be associated with leaving these decisions up to individual
                           managers who are guided only by their subjective discretion.


        15.1.    SCOPE

                 Performance management is a business process that links what employees
                 and their teams do on a daily basis, with the organisational goals, values,
                 culture, and business objectives of the organisation. It is a process intended
                 to establish a shared understanding about what is to be achieved; how it is to
                 be achieved,20 and the implications where it is not achieved.


                 15.2.1.   Discrimination in work assignment 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 measures and managed.

                 15.2.2.   The manner in which the performance of an employee is managed
                           will impact on the value that employee adds to the organisation. It
                           can also impact on how peers perceive the performance and
                           advancement of an employee, on the support received by that
                           employee, and accordingly on an organisation’s ability to retain its
                           employees. Performance management should not be a punitive
                           process, but rather one that facilitates setting clear objectives for
                           development and growth. This is essential in the challenge
                           employers face to provide opportunities for development for the
                           vast majority of employees from designated groups.

        15.3.    POLICY AND PRACTICE

                 15.3.1.   In order to effectively manage performance in manner that is anti-
                           discriminatory and encourages development, an employer should
                           ideally ensure that managers:

                    receive anti-bias and emotional intelligence training to
                                       ensure that they are able to objectively and consistently

20 – A Manager’s Guide to Performance Management Policies and Procedures
                     FOR PUBLIC COMMENTS

                                 manage performance and provide honest feedback
                                 whilst being sensitive to employee differences;

              understand and are able to properly implement the
                                 performance management system;

              are able to provide the necessary coaching, mentoring
                                 and support to employees to motivate them towards
                                 performance excellence.

          15.3.2.   Performance management systems should ideally in addition:

              Measure and incentivise managers for their leadership,
                                 mentoring and diversity skills, as well as for achieving
                                 employment equity objectives;

              Incorporate a 360 review process, which may include
                                 measures relating to diversity competencies of
                                 managers and feedback on effective and emotionally
                                 intelligent management skills from employees and the
                                 manager’s peers;

              Ensure clear development and learning objectives for
                                 all employees, but particularly designated groups, to
                                 ensure acquisition of additional skills and competencies
                                 for “stretch” positions into which they may be promoted
                                 or transferred;

              Apply across the board to everyone in the organisation,
                                 irrespective of seniority or designated group
                                 membership, in order to instil a culture of accountability
                                 and performance excellence; and

              Ensure that managers and supervisors are fully aware
                                 of the “rating pitfalls” when conducting performance
                                 appraisals. Rating pitfalls may be particularly
                                 problematic when combined with stereotypes and can
                                 lead to perceptions that the performance management
                                 system is discriminatory. The following examples of
                                 areas that occur in rating should be avoided:

                       Halo effect: This implies that the rater rates
                                            the employee either high or low on all relevant
                                            factors because the employee is perceived to
                                            be high or low on one or two factors;

                       Rater knowledge of the person: Ratings must
                                            not be based on limited data. If the rater does
                                            not have all the information then s/he should
                                            either find out more or leave that performance
                                            outcome for someone more knowledgeable to
                                            rate the employee;
                     FOR PUBLIC COMMENTS

                       Recency effects: This involves basing all the
                                            evaluations on recent events rather than on
                                            performance over the entire review period;

                       Appearance: This involves allowing the
                                            physical appearance of the employee to
                                            determine judgements; and

                       Compassion: This involves allowing
                                            sympathetic feelings to interfere with ratings -
                                            this will however not assist in the
                                            development of the person being rated.

            15.3.3.   Employers should ideally review the results of performance
                      appraisals and place these on a distribution curve to assess if there
                      are any significant variations across designated groups. If this is
                      the case, an employer should ideally identify the reasons for these
                      variations and take action to eliminate barriers which affect the
                      effective performance of employees from designated groups.

            15.3.4.   Employers should ideally monitor the work allocation process to
                      ensure that there is an even distribution of the “plum” jobs as well
                      as the “not so exciting” work and that managers do not unfairly
                      discriminate in work assignments. The performance management
                      system should be able to track whether equity in work allocation
                      exists on the part of managers.


            15.4.1.   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, to
                      employee morale, which in turn leads to happy employees and a
                      more harmonious workplace. Culture and climate surveys, which
                      provide for a breakdown of results by designated group may also
                      be useful to identify perceptions of whether the performance
                      management system is applied fairly and equitably or whether it
                      contains inherent problems that present barriers to the
                      advancement and growth of designated groups.

            15.4.2.   Remuneration - since performance management is often linked to
                      reward it may be useful for organisations 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
                      identification of areas of potential discrimination and ensure action
                      plan to eliminate barriers.

            15.4.3.   Skills development – effective and regular performance
                      management may ensure identification of training and development
                      needs, which may be addressed through interventions that will
                      either better equip an employee to cope within existing position, or
                      to “stretch” into a more challenging position. These objectives may
                     FOR PUBLIC COMMENTS

                             then be incorporated into the individual career development plan,
                             the Workplace Skills Plan for the organisation and may form a
                             substantive component of the skills and development programmes
                             referred to in the Employment Equity Plan.


         16.1.     SCOPE

                   16.1.1.   The Skills Development Act21 and the Skills Development Levies
                             Act22 provide employers, employees and trade unions with a
                             mutually reinforcing and supporting set of requirements and tools
                             for promoting the training and development of employees in line
                             with business objectives and the requirements of the Act.

                   16.1.2.   This section describes the areas that impact on an organisation’s
                             ability to develop employees from designated groups, which

                      effectively identifying training needs and matching
                                         these with the needs of the organisation;

                      providing effective mentoring and coaching;

                      providing structured on-the-job training;

                      considering accelerated development for employees
                                         with potential;

                      providing meaningful job roles;

                      implementing individual development plans;

                      providing shadowing opportunities;

                      creating challenging work assignments; and

                      developing and promoting positive role models and
                                         quick wins for designated groups.


                   Skills development of employees is 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 professional, managerial and technical
                   positions from which they are disproportionately excluded.

     Act No 97 of 1998
     Act No 9 of 1999
                     FOR PUBLIC COMMENTS


            16.3.1.   Every employer should ideally develop written policy, procedure,
                      practices or guidelines to reflect its commitment to training and
                      development. The policy, procedure, practice or guidelines should
                      ideally refer to the objective of encouraging 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 for the

            16.3.2.   Employers should ideally assist employees to identify and address
                      their skills gaps by formulating appropriate objectives in their
                      personal development plans, agreeing timeframes and accessing
                      the funding or resources they will require to meet these objectives.

            16.3.3.   Employers and employees should ideally also strive to create an
                      organisational culture that encourages and rewards learning for
                      everyone in the workplace. An employer may also achieve these
                      objectives through:

               appropriately structured career breaks;

               bursary schemes;

               on the job learning;

               mentoring and coaching;

               employee counselling for growth and advancement as
                                  part of an employee assistance program, and

               access to basic literacy and numeracy.

            16.3.4.   The competencies for team leaders, supervisors, line managers,
                      senior managers and professional occupations should ideally
                      include specifications related to the development of employees,
                      such as coaching and mentoring.

            16.3.5.   Employers should ideally consider conducting leadership and
                      management development programmes to ensure that leaders and
                      managers have the necessary knowledge and skills to effectively
                      manage employees and to create a work climate that is conducive
                      to successfully integrating and retaining employees from
                      designated groups.

            16.3.6.   Employers should communicate the training and development
                      priorities to all senior and line managers responsible for
                      performance management. The employer should ideally use these
                      requirements to guide the identification of potential individuals in a
                     FOR PUBLIC COMMENTS

                            proactive manner and to identify individuals who can be scheduled
                            for training and development.

                16.3.7.     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.

                16.3.8.     In procuring formal training courses from internal or external
                            providers, employers should ideally take into account the equity
                            profile of the provider. Increasingly international and local research
                            is demonstrating the importance of the sensitivity of the trainer to
                            gender, race and cultural differences in the acquisition of
                            knowledge and skill and the importance of role modelling in
                            changing stereotypical occupational opportunities.23 For example,
                            the use of women trainers for trades training traditionally
                            associated with male only trades.

                16.3.9.     Employers, particularly those whose workforces are predominantly
                            Black and involve manual labour, should ideally consider offering
                            Adult Basic Education and Training opportunities. A functionally
                            literate workforce facilitates better communication which in turn
                            improves the quality of work, productivity, efficiency, team
                            performance, health and safety, customer satisfaction, worker
                            retention and ability to use new technology. It also contributes to a
                            better understanding and good relations, between workers from all
                            racial groups as well as between managers, workers and their

                16.3.10.    An organisation’s employment equality policy should ideally be a
                            standard component of all training and development courses to
                            ensure that employees understand the philosophy behind it and
                            how it relates to the workplace.

                16.3.11.    An employer should ideally consider offering diversity training to all
                            employees, but specifically for those involved in recruitment and
                            selection, performance management and decisions relating to

                16.3.12.    Staff responsible for selecting employees for training, either as part
                            of their induction or to develop particular skills, should ideally
                            themselves be trained to:

                   recognise potential, particularly from designated group

   For example, the use of women trainers for trades training traditionally associated with male only
                     FOR PUBLIC COMMENTS

              select trainees according to objective criteria or in terms
                                  of the Workplace Skills Plan or training and
                                  development policy;

              align training and development access for designated
                                  groups to numerical goals and other objectives set in
                                  the Employment Equity Plan; and

              identify and deal with any barriers or discrimination in
                                  allocation of training opportunities or other barriers that

            16.3.13.   The organisation should monitor training opportunities in order to
                       identify and deal with any disparities between groups and to ensure
                       that training is done to achieve the employment equity objectives
                       set out in the Employment Equity Plan.

            16.3.14.   An organisation should ideally conduct training impact evaluations
                       to track the progress of employees post-training. This includes
                       recording training numbers and types of training to ensure that
                       measurement of the impact of training on achieving employment
                       equity targets occurs. This may ensure the effectiveness of the
                       training and development opportunities and that they have a long-
                       term impact on equity objectives.


            16.4.1.    Implementing employment equity - Employees from designated
                       groups who are provided with effective training and development
                       interventions are likely to be able to perform better at work. This
                       may contribute towards improved organisational performance and
                       may increase the profile of employees from designated groups thus
                       creating a positive approach to recruiting and retaining these
                       employees within the organisation.

            16.4.2.    Performance management - The performance management
                       system should ideally include the measurement of line managers
                       and supervisors in relation to the contribution they make to the
                       skills development of the employees that report to them.

            16.4.3.    Promotion - Effective training and development of employees from
                       designated groups may contribute towards them obtaining
                       enhanced skills and knowledge in order to be considered for career
                       advancement and promotion within the organisation.


    17.1.   SCOPE

            Promotion and transfers are processes that allow employee mobility for
            various purposes, including career development, succession planning and
            operational requirements.
                     FOR PUBLIC COMMENTS


            Promotion and transfers have the potential to impact on numerical goals and
            objectives for equitable representation of all groups in job categories within a
            workplace. These initiatives can constitute key drivers for employment equity
            in that they can involve fast-tracking and advancement to achieve numerical
            targets, but should not be implemented in a manner that sets employees up
            for failure or promotes them beyond their current capabilities.


            17.3.1.   Organisations are prohibited from discriminating unfairly in
                      promotion and transfer decisions. One of the mechanisms for
                      ensuring anti-discrimination in this regard may be to ensure that
                      written policy, practices, procedures or guidelines exist to specify
                      the criteria and procedure that will apply to promotions and
                      transfers. Managers implementing the policy, practices, procedures
                      or guidelines should ideally be monitored to ensure that they are
                      not applying these inconsistently in relation to designated and non-
                      designated groups.

            17.3.2.   The organisation can utilise preference for designated groups in
                      transfers and promotions as a legitimate affirmative action
                      measure, provided this is subject to consultation and is
                      incorporated in the Employment Equity Plan.

            17.3.3.   Lateral transfers to equivalent positions can be effectively used to
                      achieve employment equity targets and also to make reasonable
                      accommodation in instances where an employee requests this in
                      order to move to another branch or division of the organisation (for
                      example to avoid extensive travel or to be closer to family).


            17.4.1.   Retention - Promotion and transfer can contribute to retention of
                      employees where the employee does not feel sufficiently
                      challenged or rewarded in an existing position.

            17.4.2.   Performance management – 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.

            17.4.3.   Remuneration – Promotions and transfers can have a positive or
                      negative effect on remuneration, and may require consideration to
                      be given to incentives, for example to encourage an employee to
                      transfer to a less popular operational or geographic area.
                     FOR PUBLIC COMMENTS


    18.1.   SCOPE

            18.1.1.   This section is concerned with information the employees are
                      entitled to obtain from their employers and that employers may
                      disclose about their employees.

            18.1.2.   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.


            18.2.1.   The Act places a duty on a designated employer, when engaging in
                      employment equity consultation, to disclose to the consulting
                      parties all relevant information that will allow meaningful

            18.2.2.   The object of disclosure is to make the process of consultation as
                      participative and meaningful as possible, to ensure good faith
                      engagement and to develop trust between employers and

            18.2.3.   Proper and timeous disclosure of information (excluding
                      confidential information and individual employee information) will
                      facilitate consensus regarding appropriate employment equity
                      initiatives and reduce the prospect of these initiatives being

            18.2.4.   An organisation must disclose information that is relevant and that
                      is reasonably required by the consulting parties to engage
                      effectively on employment equity issues.

            18.2.5.   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 issues. Such information could include:

               Examples of the common terms in contracts of
                                  employment issued to employees in different levels or

               Records and documents that the employer is required
                                  to submit to the Department of Labour in terms of the
                                  Employment Equity Act;

               Disciplinary and grievance records concerning
                                  complaints under the Act;
                     FOR PUBLIC COMMENTS

               Health and safety information insofar as this is relevant
                                  to the working environment and employee well being;

               Remuneration and benefits - reward policies and
                                  systems, job evaluation systems and grading criteria,
                                  earnings and hours analysed according to grade,
                                  department, workplace, sex, race, out-workers, casual
                                  workers etc with a view to identifying and facilitating the
                                  removal of any directly or indirectly discriminatory
                                  remuneration practices that are unfair;

               Conditions of service - policies on recruitment,
                                  redeployment, redundancy, training, affirmative action,
                                  and promotion and appraisal systems;

               Implementing employment equity - number of staff
                                  employed by that employer and analysed according to
                                  grade, department, location, age sex, race or any other
                                  appropriate criteria; as well as labour turnover and skills
                                  pool availability.


            Type of information

            18.3.1.   The organisation 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.

            18.3.2.   Information should be supplied in the predominant language of the


            18.3.3.   Private personal information is regarded as confidential information.
                      Private personal information will include certain information that
                      may be typically found in an employee’s personnel file. This
                      information may include information concerning the employee’s
                      financial circumstances, marital circumstances, criminal record, or
                      health [e.g. HIV/AIDS, alcoholism], etc. The employer may not
                      disclose this kind of information unless the employee consents in
                      writing or an arbitrator requires disclosure.

            Collection and communication of employee data: Balancing the need for
            information against the right to privacy

            18.3.4.   Information is collected on employees from the time that 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
                     FOR PUBLIC COMMENTS

                     information against the need to maintain high standards of personal
                     privacy and the confidences of third parties.

          18.3.5.    An employer should not collect personal information from
                     employees unless –

              The information is collected for a lawful purpose that is
                                 directly related and necessary to implementing
                                 employment equity in the workplace such as making
                                 development, promotion and recruitment decisions; and

              The information is reasonably necessary for that

          Disclosure of information

          18.3.6.    An employer’s approach to releasing employee information should
                     be based on the assumption that the employer will maintain as
                     confidential such employee information in its possession or to
                     which it has access. An employer may only release information
                     when an employee expressly authorises the employer to do so.

          Security of disclosed information

          18.3.7.    Information collected on employees, such as race, gender, sexual
                     orientation, religion, performance, training records, psychological
                     assessments or health or imparted by employees to their employer
                     should be kept secure and only those entitled to see it in the course
                     or their duties should have access to it.

          18.3.8.    For governance purposes, employers should have a written
                     security policy for the gathering and disclosure of information.
                     Employers should keep a written record of the names of those,
                     whether within or external to the employer organisation, to whom
                     employee information has been revealed and for what purpose.

          Collecting employee information

          18.3.9.    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.

          18.3.10.   Medical personal data must be collected in conformity with
                     legislation, medical confidentiality and the general principles of
                     occupational health and safety, and only to determine whether an
                     employee is fit for a particular job or entitled to employment or
                     social benefits.
                     FOR PUBLIC COMMENTS

            Employee rights

            18.3.11.   Employees should be afforded periodic opportunities of checking
                       the accuracy of their information, rectifying and updating it,
                       particularly as it relates to employment equity.

            18.3.12.   Employees can insist on the rectification or deletion of incorrect or
                       misleading data. Where information is corrected, those alterations
                       should be communicated to subsequent users of the data, unless
                       the employee agrees that it is not necessary.


            18.4.1.    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.

            18.4.2.    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 of the

            18.4.3.    Assessments - An employee’s manager, with the assistance of an
                       expert in testing, should only consider psychological assessments
                       of an employee if they are current.


    19.1.   SCOPE

            This section deals with all aspects of the working environment and the factors
            that need to be taken into account in creating an equitable workplace.


            19.2.1.    Workplace initiatives can be effective in fostering employment
                       equity and diversity both within and beyond the boundaries of the

            19.2.2.    Organisations should strive to create a workplace that extends
                       beyond employees to include family members and members of the
                       community. All levels of the organisation should recognise the
                       changing nature of work and the need for employees to integrate
                       their work and personal lives. Creating a positive workplace
                       involves changing both organisational culture and facilities. This
                     FOR PUBLIC COMMENTS

                      can have a positive impact on the broader community close to the

            19.2.3.   Organisations should endeavor to create a workplace based on the
                      principles of anti-discrimination, fairness and equality.
                      Organisations should, in consultation with employees, identify
                      barriers in the workplace that operate to exclude or include certain
                      employees or groups, either directly or indirectly.

            19.2.4.   Organisations should conduct regular climate surveys and audits of
                      the workplace to identify barriers and unfair discrimination and
                      eliminate them. These surveys can also enable measurement of
                      the impact of transformation initiatives, including affirmative action



            19.3.1.   The organisation’s mission, vision and other corporate
                      documentation should reflect a commitment to employment equity
                      as an ethos. This should be effectively communicated both
                      internally and externally.

            19.3.2.   Communication of employment equity concepts and initiatives to
                      generate a common understanding and eliminate misconceptions is
                      necessary, and should also emanate from credible and legitimate
                      sources, for example, an elected employment equity consultative
                      structure, leadership, employment equity representatives, and trade
                      union officials.

            19.3.3.   Communication of the business value of employment equity and
                      regular feedback about progress is critical to ensure that the
                      organisation promotes constant dialogue regarding employment
                      equity and its impact.

            19.3.4.   The use of alternative or additional methods of communication
                      should be used where employees find it difficult to understand
                      health and safety requirements, for example:

               Safety signs; translations of safety notices;

               Instructions through interpreters;

               Instruction combined with industrial language training;

               Industrial theatre.

            Diversity management

            Diversity training for managers and all staff should ideally be conducted on a
            regular basis to reinforce the principles of equal dignity, respect and zero
                     FOR PUBLIC COMMENTS

          tolerance for unfair discrimination. This will also ensure that the environment
          is one in which differences between employees, irrespective of whether they
          are based on race, gender, disability, sexual orientation, religion, or any other
          ground, are not determinative of employee value, and that all employees are
          equally respected and valued. Managers who manage diverse work teams
          should be especially sensitive to issues that impact on their employees. This
          will require an understanding of the different needs of all their employees –
          for example Muslim employees who need time off for religious observances
          on Fridays, Jewish employees who are not able to work on the Sabbath, etc.
          Managing the diversity of employees in the workplace is key to ensuring
          support for employment equity. The process of managing the transforming
          nature of the workplace should not be taken for granted and requires regular
          programmes to ensure understanding and buy-in.

          Reasonable Accommodation

          The Act imposes a duty on employers to accommodate the needs of
          designated groups where they are adversely affected by workplace rules,
          policies, practices, procedures or guidelines. The Act requires "reasonable
          accommodation" which means “any modification or adjustment to a job or to
          the working environment that will enable a person from a designated group to
          have access to or participate or advance in employment”. This requires a
          workplace rule to be flexible and to be applied to each individual employee
          and to accommodate each individual employee unless such accommodation
          causes the employer “undue hardship”. Undue hardship would be determined
          according to the effect on the business and employees as well as the cost to
          the employer. Reasonable accommodation can most easily be made by
          demonstrating genuine concern for employees and their problems and in
          providing support and assistance to deal with them.

          Work life balance

          19.3.5.   Taking into consideration a work life balance in an organisation will
                    contribute towards attracting and retaining employees from
                    designated groups.

          19.3.6.   Organisations should strive to develop a culture of collaboration
                    between employees and managers aimed at allowing employees to
                    achieve both their work and personal objectives to the benefit of the
                    employer and employee. Creating this collaboration is referred to
                    as “work-life balance”, “family friendly practices”, or “work and
                    family life balance”.

          19.3.7.   By building a work-life balance for employees an organisation is
                    endeavouring to create an effective and stimulating workplace in a
                    global context that is characterised by more women employees,
                    more employees being single parents and where families have both
                    parents working. The work-life balance should also address the
                    reality that jobs are harder to keep as globalisation forces leaner
                    organisations with increasing casualisation of the workforce.
                     FOR PUBLIC COMMENTS

          19.3.8.    Work-life programs involve changing the culture of an organisation
                     to emphasise output rather than means, and to value productivity
                     over actual time at work.

          19.3.9.    Work-life balance programs include:

              flexible work time,

              job sharing arrangements,

              child-care or access to child-care,

              emergency child-care, holiday or after-care
                                 arrangements for school-going children of employees,

              paid parental leave,

              paid maternity leave or top-up of leave pay for women
                                 entitled to claim maternity benefits from government,

              career breaks or time out options,

              terms and conditions of employment that support
                                 attempts to cope with family responsibilities like optional
                                 work-related travel, transport assistance for working

              child-care allowances or equivalent,

            telecommuting and other types of personal support

          19.3.10.   Determining what programs will be effective requires organisations
                     and employees to clarify their respective business and personal
                     priorities, and agree on the principles and initiatives that will govern
                     the workplace in order to facilitate work life balance. It requires
                     support and acknowledgement for employees as “whole” people
                     with lives and interests outside the workplace, not just producers of
                     output for the employer. Employers may have to experiment with
                     work processes to find strategic solutions that work.

          19.3.11.   Work life practices should not be aimed at women employees only
                     but should enable all employees to achieve reconciliation between
                     their work and personal needs and responsibilities.

          19.3.12.   Work life balance also requires organisations to create an
                     environment of trust that facilitates honest two-way exchange of
                     information between manager and employee and a partnership
                     approach to the issues, as well as a culture of respect for diversity
                     and the needs of employees with personal needs or family
                     FOR PUBLIC COMMENTS


            All human resource policy and practice areas are relevant to ensuring equity
            in the working environment.


    20.1.   SCOPE

            The retention of all employees, and 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.


            Senior and professional employees from designated groups are generally
            headhunted by employers offering lucrative packages, and this leads to the
            so-called “revolving door” syndrome that creates a negative impression of
            affirmative action. However, the opportunities created by the global economy
            require all employers who seek to retain their talented and skilled employees,
            to develop retention strategies and to manage who leaves and why they


            In the context of employment equity, employers have to identify the trends
            that exist in their workplace in regard to employees who leave, and develop
            appropriate strategies to retain designated groups. This may require
            negotiating objective 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. It will also
            require appropriate strategies to be formulated and consulted about, based on
            the needs of designated group employees that arise in that workplace. These
            strategies should be directed at removing the barriers that cause employees
            to leave – for instance, women of childbearing age who leave because the
            workplace does not provide sufficient support and flexibility; designated group
            employees who leave because there is inadequate mentoring or insufficient
            opportunities for training and development. The employer could also
            implement various incentives (for example, employee share option schemes,
            performance bonuses, Black economic empowerment options, etc.) to induce
            retention. The retention strategies developed in each workplace, through the
            employment equity consultative process, should form part of the employment
            equity plan for that workplace, and their success in retaining key talent should
            be regularly monitored and measured.
                     FOR PUBLIC COMMENTS


            20.4.1.   Recruitment and selection - Fair and equitable treatment of an
                      employee in the recruitment process to a large extent determines
                      long-term retention.

            20.4.2.   Induction – An effective induction process that manages to
                      effectively integrate employees, particularly employees from
                      designated groups where they are in the minority in that workplace,
                      contributes to retention as these employees are likely to remain in
                      the long term.

            20.4.3.   Terms and conditions of employment – Equitable and
                      favourable terms and conditions of employment are likely to
                      contribute to long-term employee retention,

            20.4.4.   Skills development – Ensuring equitable training and
                      development opportunities linked to the career path of every
                      employee and the workplace skills plan for the organisation, is
                      likely to contribute to long-term retention compared to an
                      environment where minimal investment is made in training.

            20.4.5.   Remuneration - The employment equity plan could include, as a
                      retention strategy, the payment of a bonus to employees who
                      remain after a specific time period, as a retention bonus or
                      premium, although this should be implemented cautiously since it
                      has obvious dangers for the organisation. Employees who are
                      provided with opportunities (for example, an overseas work stint,
                      training course or conference) could also be tied in contractually to
                      remain in the workplace for a specified period.

            20.4.6.   Promotion – Providing opportunities for promotion and in general
                      recognising employees for their good performance are likely to
                      contribute to retention.

            20.4.7.   Exits – The exit interview can provide critical information on why
                      employees leave, and should be supplemented with information
                      obtained from climate surveys or employee satisfaction surveys.


    21.1.   SCOPE

            21.1.1.   This Code is a guide for employers and employees on ways of
                      addressing conflict or grievances and resolving disputes that may
                      arise in the workplace as a result of employment equity. It
                      recognises that conflict is best resolved if addressed expeditiously
                      and according to fair and impartial principles.
                     FOR PUBLIC COMMENTS

            21.1.2.   This Code is based on the principle that employers and employees
                      should treat each other with mutual respect and dignity. To this end
                      the Code seeks to balance the right of employees to fair labour
                      practices against the right of employers to expect satisfactory
                      conduct and performance by employees.


            21.2.1.   This section of the Code:

               provides guidance for employers and employees on
                                  how best to comply with the spirit and underlying
                                  principles of the Act when disciplining employees or
                                  managing grievances or disputes;

               promotes good practice in grievance and dispute
                                  resolution to eradicate unfairness in these processes
                                  and their outcomes;

               encourages consistent application of discipline in order
                                  to achieve equity in the workplace and avoid allegations
                                  of unfair discrimination; and

               reaffirms the importance of promoting understanding of
                                  differences of racial, cultural, ethnic, linguistic and
                                  religious groups, genders, HIV positive individuals and
                                  between persons of different sexual orientations.

            21.2.2.   It is the responsibility of organisations to do everything possible to
                      eliminate harassment and all forms of discrimination in the
                      workplace. This is best achieved by developing appropriate policies
                      and procedures that regulate how transgressions with these are
                      managed and will be dealt with.

            21.2.3.   This Code is not intended to serve as a substitute for grievance or
                      disciplinary procedures concluded at a workplace. It requires the
                      employer to evaluate whether existing grievance and dispute
                      resolution procedures are conductive to dealing with unfair
                      discrimination and harassment issues and issues arising from the
                      Employment Equity Plan or consultative process. Where they are
                      not the organisation should consider creating separate processes
                      or institutions. Some organisations have effectively used an Ombud
                      to monitor and receive complaints related to discrimination and
                      affirmative action.


            The Grievance Process

            21.3.1.   Grievance policies and procedures should make provision for a
                      process whereby employees are able to report acts of
                      discrimination, harassment or violation of the Act without the threat
                      of victimisation.
                     FOR PUBLIC COMMENTS

                 21.3.2.      Organisations should investigate all complaints of harassment,
                              discrimination or allegations of a breach of the Act as quickly and
                              thoroughly as possible.

                 21.3.3.      Where appropriate organisations should consider appointing an
                              independent person to conduct a fact-finding exercise and to make
                              written recommendations to the organisation. This fact-finding
                              process should be conducted on an expeditious basis and with as
                              little disruption to the employer’s business as possible. During this
                              fact-finding process:

                          the fact finder would, on a without prejudice basis,
                                             consult with the employer, the aggrieved employee and
                                             any other persons identified by the fact finder;

                          all employees and the employer should be encouraged
                                             to disclose all relevant information;

                          any representative trade union should be encouraged
                                             to participate in the process;

                          the fact finder should try to develop a consensus with
                                             the parties involved in the process about the resolution
                                             of any grievance or conflict that has arisen as a result of
                                             an allegation of harassment, discrimination or breach of
                                             the Act.

                 21.3.4.      Organisations should ensure that employees who file a grievance
                              or declare a dispute as a result of having experienced or being
                              aware of any discrimination, harassment or breach of the Act are
                              not intimidated or victimised for having raised the complaint or

                 21.3.5.      Organisations should take disciplinary action against any employee
                              who retaliates against an employee for using the grievance
                              procedure to address a concern or grievance concerning an
                              alleged act of harassment, discrimination or a breach of the Act.

                 Guidelines for Disciplinary Procedures

                 21.3.6.      Disciplinary policies and procedures could refer to workplace rules
                              that make any act of discrimination, harassment or breach of the
                              Act a form of serious misconduct;

                 21.3.7.      Employers must ensure that employees are aware of or can
                              reasonably be expected to be aware of workplace rules and
                              standards particularly in relation to unfair discrimination and

  In terms of the Act disputes must be referred to the Commission for Conciliation Mediation and Arbitration
(CCMA) for conciliation and if not resolved to the Labour Court for adjudication.
                     FOR PUBLIC COMMENTS

          21.3.8.    Disciplinary policies and procedures should contain express
                     provisions that the employer will endeavour, wherever possible to
                     protect complainants and will treat complaints lodged sensitively
                     and discreetly.

          Disciplinary Measures

          21.3.9.    Employers are responsible for ensuring consistent application and
                     enforcement of rules or standards of the workplace to avoid
                     allegations of arbitrary or unfair application of discipline on the
                     basis of race, gender or any other prohibited ground. Rules on
                     discipline must apply equally to all employees.

          21.3.10.   The purpose of discipline should be corrective. Disciplinary action
                     should seek to correct employee’s behaviour through a system of
                     graduated disciplinary measures, such as counselling and warnings
                     or creative solutions such as diversity training interventions and
                     diversity awareness. The primary aim of discipline should be to try
                     and encourage a culture of tolerance and respect for difference.


          21.3.11.   Organisations should raise awareness of the content of their
                     policies amongst all employees, through public awareness, posters
                     and general training of employees.

          21.3.12.   Organisations should offer suitable training and mentoring to
                     employees on the Act and how to manage complaints, grievances
                     and disputes declared on issues covered in the act.

          21.3.13.   Organisations should encourage greater awareness of diversity
                     and difference through education and wherever possible foster a
                     culture of tolerance of difference.


          21.3.14.   Organisations should keep a record of all grievances, disputes and
                     disciplinary action taken in relation to the Act and conduct regular
                     audits to determine the extent to which:

            designated groups have utilised the procedures;

            the issues raised by employees and by the employer;

            the outcome of processes;

          21.3.15.   Organisations should 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 discriminatory practices, harassment or any
                     other breaches of the Act.
                     FOR PUBLIC COMMENTS


            21.4.1.   Working environment - Conflict is a feature of most workplaces.
                      Organisations need to manage the manifestations of conflict in a
                      productive and effective way that bolsters communication, reduces
                      the number of disputes and directs the conflict into an accepted
                      procedure where it can be investigated and dealt with.

            21.4.2.   Disciplinary action must conform to the Code of Good Practice in
                      Schedule 8 of the Labour Relations Act.



    22.1.   SCOPE

            22.1.1.   Exit interviews are interviews conducted by the organisation with an
                      employee prior to the voluntary termination, retirement or
                      retrenchment of an employee.

            22.1.2.   The purpose of an exit interview is to obtain valuable information
                      about how the employee experienced working in the organisation
                      and what barriers, if any, they encountered. Exit interviews also
                      serve to promote a harmonious termination of the working


            The information obtained in the exit interview can be analysed and trends can
            be identified which can then be subject to barrier removal specified in
            Employment Equity Plans.


            22.3.1.   To make exit interviews an effective process, organisations should
                      ideally ensure that:

               A standard exit interview questionnaire or set of
                                  guidelines are in place so that exit interviews are
                                  conducted consistently across the organisation;

               The interview questionnaire / guidelines include a
                                  section on allowing the departing employee the
                                  opportunity to comment on any discrimination practices
                                  in the organisation in relation to race, disability, marital
                                  status, sexual orientation, national origin or gender.

               Exit interviews should be conducted by senior
                                  employees who are skilled at obtaining the required
                     FOR PUBLIC COMMENTS

                                       information. Organisations may also consider using an
                                       independent person to conduct the interviews of
                                       employees from designated groups to ensure that they
                                       speak openly and honestly about their perceptions of
                                       and experiences within the organisation;

                    Confidentiality of information disclosed during the exit
                                       interview must be maintained. The information provided
                                       by the employee should only be used to facilitate the
                                       identification of themes that may emerge as a result of
                                       a number of exit interviews – specific information from
                                       the exit interview will only be shared with senior
                                       management if the departing employee signs written
                                       consent that this can be done;

                 22.3.2.   Organisations should consider developing quarterly reports
                           showing trends that have emerged during exit interviews, including
                           barriers experienced by employees from designated groups, are
                           compiled by an appointed person or the human resources
                           department and submitted to senior management;

                 22.3.3.   Senior management should take action to eliminate barriers that
                           are identified during exit interviews.

                 22.3.4.   Organisations should consider benchmarking their staff turnover
                           rates against similar jobs within the same sector. If turnover is
                           higher than these benchmarks then interventions will need to be
                           put in place to address this.

        22.4.    LINK TO OTHER TOPICS

                 22.4.1.   Retention - There are numerous factors that impact on the
                           retention of employees from designated groups. These factors
                           include but are not limited to work climate, competitive
                           remuneration, effective performance management, learning
                           pathways, organisational culture, incentive schemes, challenging
                           work assignments, work-life balance and organisational

                 22.4.2.   Performance management - 30% variability in business
                           performance is due to work climate25 i.e. how individuals feel at
                           work affects their discretionary effort. 50 – 70% of work climate is a
                           function of leadership and management style. This indicates how
                           key leadership and management development is in creating the
                           climate within the organisation that will retain employees from
                           designated groups and enhance their performance

     Research conducted by the HayGroup
                     FOR PUBLIC COMMENTS


    23.1.   SCOPE

            An organisation may terminate the employment of an employee for reasons
            based on misconduct, incapacity (poor work performance or ill health) or for
            operational requirement reasons. This section outlines some of the key
            employment equity considerations in ensuring that employment is terminated
            in a fair and consistent manner.


            23.2.1.   Terminations should be fairly and lawfully effected and must serve
                      the purposes of the organisation without discriminating against any

            23.2.2.   In the context of an operational requirement dismissal an employer,
                      when consulting with the affected party/ies, should consider the
                      appropriateness of adopting the standard selection criteria of Last
                      In First Out (LIFO). In the context of employment equity traditional
                      criteria may undermine the progress made to achieve numerical
                      goals, and would need to be revisited to ensure that they are
                      conducive to implementation of employment equity.


            23.3.1.   In order to achieve numerical goals, organisations may initiate
                      voluntary exit strategies or retrenchments. This strategy should be
                      preceded by consultation in order to be accepted as a legitimate
                      affirmative strategy to make space for designated groups. It should
                      be transparent and effectively communicated to those existing
                      incumbents who may be affected. Organisations should be guided
                      by the long-term viability and sustainability of institutional
                      knowledge in making the decisions to use voluntary exists of non-
                      designated groups as a strategy to achieve numerical goals. This
                      strategy should also be implemented in tandem with skills and
                      career development and succession planning to ensure that skills
                      that are core to the organisation are replaced.

            23.3.2.   Organisations should keep records related to discipline and its
                      impact on designated groups, in order to identify and track trends
                      that could serve to undermine employment equity. The following
                      types of information could be useful in this regard and will also
                      assist with measuring employment equity progress and impact:

               the number and types of disciplinary actions initiated
                                  against employees from designated groups compared
                                  to non-designated groups; and
                     FOR PUBLIC COMMENTS

               the outcome of disciplinary action taken against
                                  employees analysed according to designated and non
                                  designated groups;

               the role of managers in applying certain forms of
                                  discipline to employees from designated groups and not
                                  to others;

               perceptions of the legitimacy of disciplinary processes
                                  and their outcomes.

            23.3.3.   Organisations should also record and analyse trends in
                      management of incapacity of its employees, in terms of the
                      following areas:

               the number and forms of incapacity processes initiated
                                  against employees from designated groups compared
                                  to non-designated groups; and

               the outcome of incapacity counselling of employees
                                  from designated groups compared to non-designated

            23.3.4.   The purpose of record keeping and analysis of trends as described
                      above will enable barriers to be identified, or areas of
                      discriminatory, arbitrary or inconsistent application of discipline that
                      can undermine employment equity objectives.

            23.3.5.   Organisations should have regard to the Code of Good Practice:
                      Dismissal in Schedule 8 of the Labour Relations Act and to the
                      Code of Good Practice on Dismissal Based on Operational
                      Requirements, issued in terms of the Labour Relations Act.

            23.3.6.   When terminating the employment of an employee for reasons of
                      incapacity based on disability or chronic illness, organisations
                      should refer to the Code of Good Practice: Key Aspects of
                      HIV/AIDS and the Code of Good Practice on the Employment of
                      People with Disabilities.


            23.4.1.   Skills development – Where the data analysed indicates that
                      managers who are involved in disciplinary processes that result in
                      terminations are not competent or act in a discriminatory manner
                      that exposes the organisation to risk, these managers should be
                      trained in regard to their role and its impact.

            23.4.2.   Disputes and grievance resolution – Termination of employment
                      must be conducted according to fair labour practices and in line
                      with the dispute resolution and grievance procedures as well as the
                      Disciplinary Code of the organisation.

To top