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How to register a business with the commissioner of Compensation for Occupational Injuries and Diseases

 

Registration guidelines: Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) Form WA.s 2

 

All employers who employ one or more workers in connection with their business or farming activities, are required to register with the Compensation Fund.

Employers are required to file a separate registration for each separate branch of a business, although employers may make an arrangement for combined registration of these entities.

The following WAS 2 registration guidelines have been provided by the Department of Labour:

• All applicable items must be completed on both pages of the WA.s 2. This document MUST be signed and dated.
• A copy of the CK1/2 OR CM1 + CM29 i.r.o. Close Corporations and Companies, Trust documents or N.P.O certificates MUST be attached.
• A copy of ID-document(s) MUST be attached in respect of sole proprietors/owners/partners.

 

Without the above-mentioned documents attached, the registration cannot be processed.

 

FRONT PAGE:

 

Mark with “X” in the relevant space to indicate whether the employer is a sole proprietor (farmers included), close corporation, company, partnership, public -/local authority, organisation/association or a trust, etc.

 

PART 1 – PARTICULARS OF BUSINESS / FARMING / ORGANISATION / TRUST

1. Give the date on which the first employee was employed. It is compulsory for an employer to register within 7 days of the date the first employee was employed. Employers cannot register with this Office if no employees are employed yet.
2. Give the physical address/street address/ name(s) of the farms, postal code and district.
3. Give the physical address/street address/name(s) of farms, postal code and district 

Give contact details

 

PART 2 – PARTICULARS OF OWNER / PARTNERS / TRUSTEES / OF A CLOSE CORPORATION / COMPANY / TRUST

1. Give the name(s) of owner(s), partner(s), and trustees.  Attach a list if necessary.
   1. Give ID-number(s) of owner(s), partner(s), trustee(s)
      N.B. Copies of ID’s MUST be attached
2. Give the name of company or close corporation with DTI as well as the company or close corporation number 

N.B. A copy of the CK1/2, CM1 + CM29, trust or NPO-certificate MUST be attached.

 

PART 3 – PARTICULARS OF THE NATURE OR TYPE OF BUSINESS-/FARMING OPERATIONS, ACTIVITIES OR ORGANISATION

1. Give a detailed description of nature of the business activities or farming operations OR the goods manufactured or sold OR services rendered.

A detailed description is of utmost importance to enable this Office to determine the rate.

N.B. the description “General operations in all aspects” or “General trade in all aspects” is not accepted. Refer to the Classification of Industries, W.As. 150T, which can be obtained from this Office or on the website as a guideline.

A detailed description could be:

“Building construction” or “Civil engineering construction” and not only “Construction”

“Clothing dealer” and not only “Dealer” or “Retailers”

Therefore, the description as indicated on the CK1/2 or CM1 + CM29 e.g. “Trading in all aspects” is not acceptable. This Office needs to know the type of goods that is sold or manufactured or the type of construction that is done.

In case of labour hire / broker, indicate the type of industry to which the employees will be hired out, the number of employees in each industry and what their duties would be.

2. Describe the following IF applicable
   1. Materials used in the manufacturing of goods: e.g. leather, steel, wood etc.
   2. Nature, extent and type of construction / erection undertaken: e.g. “Building construction” or “Road Construction” and not only “Construction”
   3. In case of farming indicate the nature.   Mark with “X” next to the type of farming and in case of mixed farming indicates the %.
   4. Do you use any tractors and/or power driven saws: Mark with “X” where applicable?

 

PART 4 – PARTICULARS OF RESPONSIBLE PERSON / DIRECTOR / MEMBER OR PARTNER OF BUSINESS

1. This part must be completed.
   Attach a list with the names, ID-numbers and addresses if necessary.
2. Give the registration numbers with the Compensation Fund or Unemployment Insurance Fund in the relevant space if already registered.
3. Complete if applicable

 

PART 5          

1. This part should only be completed if the employee(s) has/have been employed during the current assessment year, (1 March the current year to 28 February next year) or any in between period within that assessment year.If the first employee was employed prior to this period, this part should not be completed. This Office will mail the Return of Earnings document(s) (WA.s 8) for the relevant years to the employer to be completed and returned to this Office.
   1. Write the average number of employees expected to be employed per month during the current assessment year. In other words March this year to February next year or any in between period.
2. If the employees estimated earnings might be less than this maximum amount per person per year, the amount estimated must be declared. Those employees who might earn in excess of this maximum amount per year, earnings up to that maximum amount must be declared per person per year as estimated earnings. A Provisional assessment will be raised on this estimated amount.  The reason for the maximum earnings is that compensation for injuries on duty is calculated and paid up to that maximum amount.
   1. Estimate the earnings expected to be paid to all the employees expected to be employed during this current assessment year (March this year to February next year or any in between period).
   2. Estimate the cash value of food and lodging for the same period if applicable
   3. Estimate the cash value of other in-kind benefits if applicable
   4. Estimate the earnings of working directors of a Co. or working members of a CC up to the same maximum earnings indicated in item 5.2 on the Registration form.
3. Add up the estimated totals from item 5.2.1 to 5.2.4 and write it in the available space. Indicate for what period the estimation was done by writing the dates in the available space.

 

PART 6

1. Complete item if applicable.
2. Complete bank details for the purpose of electronic deposits to your bank account if applicable

 

DECLARATION BY EMPLOYER OR AUTHORISED PERSON

 

This part MUST be completed, signed and dated.

 

WHO IS AN EMPLOYER?

All persons who employ one or more employees, in connection with their business/farming activities, organisation/ association/trust are “employers” in terms of the Act.

 

WHO IS AN EMPLOYEE?

Any person, irrespective of age, who is employed by an employer for the purpose of his business / farming activities.   This also includes temporary and casual workers when employed for the purpose of the business / farming.

 

“EMPLOYEE” is defined by this Act as a person who has entered into, or works under a contract of service or apprenticeship or learner ship with an employer, whether the contract is expressed or implied, oral or in writing, and whether remuneration is calculated by time or work done, or is in cash or in kind and includes –

• Casual / temporary employees employed for the purpose of the employers’ business/farming/organisation’s activities.
• Working director of a Company or member of a Close Corporation/Body Corporate, who has entered into a contract of service, or of apprenticeship or learner ship, in so far that the employee acts within the scope of his/her employment in terms of such contract. (Excluding shareholders or “silent partners” who are only paid dividends or sharing profits).

 

NB. A sole owner or partners in a business / farming operation are not regarded as “employees” as contemplated by the Act and their earnings should, therefore, not be included.

• A person provided by a labour broker against payment to a client for the rendering of a service or the performance of work and for which service or work such person is paid by the labour broker, is an employee of the labour broker. The earnings of such persons should be included in the client’s Return of Earnings, W.As. 8, document.

 

“EARNINGS” are all payments made regularly, before any deductions, whether in money or in kind, to employees.

 

The following list is not exhaustive but is intended only to highlight remuneration items for which there might be some doubt as to their inclusion or exclusion.

 

Included in the gross earnings before any deductions are the following:

• Overtime of a regular nature, (not intermittent or irregular overtime).
• Bonuses of any kind, including incentive bonuses and annual bonuses.
• Commission, even though the amount may vary from month to month.
• The cash value of food and quarters supplied to employees as part of a remuneration package.
• Cash value of fringe benefits such as a company car, free accommodation or accommodation at a reduced rate, etc.
• Travel and other allowances paid regularly, as part of the package.
• Where the employee is remunerated in accordance with a package of benefits, all items forming part of the package, other than employer contributions such as medical aid contributions.
• Earnings / Drawings paid to working Directors of a Company or Members of a Close Corporation.

 

EXCLUDED ARE THE FOLLOWING:

• Payments of a reimbursive nature;
• Overtime worked occasionally;
• Payments for specific non-recurring tasks which do not form part of an employee’s normal duties;
• Ex gratia payments;
• Intangible fringe benefits such as the taxable portion of medical aid/pension contributions by the employer, etc.;
• Payments to cover special expenses such as subsistence and travelling costs, lunch and costs for business meetings;
• Travel and other allowances paid occasionally; and
• Profit sharing of Directors and Members.

 

LETTER FOR TENDER PURPOSES

• Employers may apply for a letter for “tender purposes” before employee has been employed and before registration. Fax number 012: 323 5023 or 012: 357 1823.
• Employers may apply for “Proof of registration” for “tender purposes” as soon as a registration number has been allocated. Fax number 012: 323 5023 or 012: 357 1823.
• A post card is automatically posted to all registered employers which is proof of registration with this Office.

 

LETTER OF GOOD STANDING can be obtained once the employer has complied with the requirements of the Act, inter alia:

• Submitting the latest return of earnings;
• Assessment has been paid or instalments have been arranged. If arrangements made for instalments, attach copy of receipt (Proof of Payment);
• To arrange for instalments: Fax 012: 357 1783  Tel  012: 3199 347;
• Application should be made in good time, 5 working days before it is required, preferably on a letterhead, in writing;
• Please quote the registration number, as well as telephone and fax numbers with dialling code;
• Applications on behalf of the employer by Consultants or Agents should be in writing and accompanied by a Power of Attorney;
• Any tampering with the contents of these Letters is a serious offence.

 

APPLICATION FOR LETTER OF GOOD STANDING CAN BE FAXED 5 WORKING DAYS IN ADVANCE TO FAX NO:  012: 323 0262 or 012: 323 5433.

 

WEBSITE ADDRESS

The Compensation for Occupational Injuries and Diseases Act, 1993 and Amendments are available on the website at http//www.labour.gov.za[/vc_column_text][vc_column_text]

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How to register a business for UIF

 

Registration of a business and new employees for unemployment insurance contributions is regulated by the Acts listed below:

• The Unemployment Insurance Contributions Act 4 of 2002 (UICA)

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• The Unemployment Insurance Act  63 of 2001 (UIA)

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[/vc_column_text][vc_column_text]The statutory duty to pay unemployment insurance applies to all employers, and all employees except:

• Where an employee works less than 24 hours in a month for an employer;
• Employees under a contract of employment contemplated in section 18 of the Skills Development Act 97 of 1998;
• Foreigners who entered the Republic to carry out a contract of service, apprenticeship or learnership and who will be leaving SA at the end of their contract, work permit, visa etc.; and
• Certain government and municipal employees.

 

Every employer and every employee, except for those listed above, must contribute on a monthly basis to the Unemployment Insurance Fund (UIF).

 

• The employer must apply for registration with UIF. Such registration may be undertaken via the electronic filing provision of “u-Filing”. The electronic link is as follows: https://www.ufiling.co.za
• The employer and the employee must each contribute on a monthly basis 1% of the gross remuneration payable to the employee. The total monthly contribution is thus 2% of the employee’s gross monthly remuneration.
• This is paid to the UIF and can be done online.
• There is a maximum remuneration level that is determined from time to time – this is currently R14 872-00 i.e. the maximum UIF contribution is 2% of R14 872-08 (GN 783 in GG35715 as of 26 September 2012). This means that employees earning over this limit still contribute, but their contributions and those of their employer are calculated on the maximum earnings ceiling.
• The employer must deduct the employee’s contribution and pay it, together with the employer’s contribution, to the Commissioner of the UIF or SARS on or before the 7^th day of each month, or on the last business day before the 7^th should it fall on a Saturday, Sunday or public holiday,
• The employer must at the same time submit a UIF return – this can also be done on u-Filing at the address provided above.
• The employer must advise the UIF of any terminations or new appointments, by the 7^th of each month (on the monthly UIF return).

 

How to register as an employer for UIF

This can be done online via u-Filing[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]U-Filing also allows for the following:

• Monthly returns and payments
• Uploading employee documents
• Downloading relevant UIF forms
• Employer and employee guidelines / ‘frequently asked questions’

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How to register a business for UIF

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What benefits can employees claim in terms of the Unemployment Insurance Act 63 of 2001(UI Act)?

 

1.     Unemployment benefits

 

Section 16 of the UI Act states that unemployment benefits are payable to an unemployed contributor who has been unemployed for more than fourteen days if the reason for unemployment is

• The termination of the contributor’s contract of employment by the employer or the end of his/her fixed-term contract;
• The dismissal of the contributor;
• Insolvency;
• In the case of a domestic worker, the termination of the contributor’s contract of employment by the death of the employer.

 

NB: Where the contributor resigns from his/her employment, s/he is not entitled to claim unemployment benefits, unless the contributor has succeeded in a claim of constructive dismissal at either the CCMA or a bargaining council.

 

Furthermore, the contributor is required to comply with the following:

• Apply within six months of the termination of the contract of his/her services;
• Must register as a work-seeker with a labour centre; and
• Be capable of and available to work.

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2. Maternity benefits

 

In terms of section 25 of the UI Act, the application for maternity benefits must be made in the prescribed form at least eight weeks before childbirth.

 

The maternity benefit may not be more than the remuneration the contributor would have received had the contributor not been on maternity leave.

 

The maternity benefit is paid for a maximum period of 17.32 weeks. Where the contributor has a miscarriage during the third trimester or bears a still-born child, the maximum maternity benefit payable is six weeks after the miscarriage or stillbirth.

 

3. Illness benefits

 

These benefits are payable when a contributor has not been able to work due to ill health for a period exceeding fourteen days. The period of illness is calculated from the date that the contributor stops working due to ill health and an application for these benefits must be made within six months of this date. The illness benefit may not be more than the remuneration the contributor would have received from the employer had the contributor been at work.

 

In terms of the Unemployment Insurance Regulations, an employer is required to complete form UI 2.7 which serves as a statement in respect of payment made to the contributor who is still employed, but is unable to work due to illness, maternity or adoption of a child.

 

4. Adoption benefits

 

Adoption benefits are available to only one contributor of the adopting parties and only if the child has been legally adopted in terms of the Child Care Act 74 of 1983, the adopted child is below the age of two and the period that the contributor was not working was spent caring for the child.

 

The application must be made within six months after the date that a competent court has granted an order for adoption in terms of the Child Care Act.

 

The adoption benefit may not be more than the remuneration the contributor would have received from the employer had the contributor been at work.

 

5. Dependant’s benefits

 

In terms of section 30 of the UI Act, the surviving spouse or a life partner of a deceased contributor may apply, within six months of the death of the contributor, for the contributor’s benefits.

 

Any dependent child of a deceased contributor may apply for the dependent’s benefits if there is no surviving spouse or life partner or the surviving spouse or life partner has not made application for the benefits within six months of the contributor’s death.

 

The dependant’s benefit may not be more than the remuneration the contributor would have received from the employer had the contributor been alive.

 

Documents required:

• Contributor’s record card
• A certificate from the last employer in the form of and including the information called for in Annexure UF 128
• Dependant’s ID document
• Deceased’s ID document
• Form UI-19 completed by the employer
• Marriage certificate or evidence of a customary marriage
• Affidavit – for life partners
• Birth certificates – for children
• Proof of schooling – for children between 21 and 25
• Death certificate of the deceased contributor

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What benefits can employees claim in terms of the Unemployment Insurance Act 63 of 2001(UI Act)

S198A-D of the LRAA 2014 (Non-standard employment)

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GUIDELINE FOR FIXED-TERM CONTRACT OF EMPLOYMENT

 

This contract should only be used for work that is of a genuine temporary nature, or where there is some other justifiable reason for fixing the term of the contract and where the employee works on a full-time, part-time or variable time basis.

 

NOTE:

If there is no justifiable reason for fixing the term, the employee will be deemed to be a permanent employee if the agreement endures (or is renewed) beyond a period of three months.

 

Justifiable reasons for a fixed-term contract

 

• This type of contract must include a clause which sets out possible justifiable reasons in terms of section 198B (4) of the LRA, for fixing the term of the contract.
• These are not the only possible reasons, but any other justifiable reason must be specified and should be of a similar nature to the ones listed in section 198B (4) above.
• Probation is not a valid reason for a fixed-term contract, and nor is affordability.
• The reason for entering into a fixed-term contract MUST be recorded in the contract.
• The most common reason for entering into a fixed-term contract is where there is a temporary need for work to be done; for example, on a building project.
• The term can either be fixed with reference to time (a specific end date) or to the work to be done (contract expires on completion of the project, or the work allocated to the employee).

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Expiry of a fixed-term contract: reasonable expectation (Clause 1.4)

 

• Expiry of a fixed-term contract may be determined with reference to time or the happening of a specific event or completion of a task.
• Normally the expiry of a fixed-term contract does not constitute a dismissal.
• However, if an employee is given a reasonable expectation that the contract will be renewed on the same or similar terms, and it is not, or if he/she is given a reasonable expectation of permanent employment, and he/she is not permanently employed; this may give rise to a claim of unfair dismissal in terms of section 186(1)(b) of the LRA.
• For this reason, this is an important clause in the contract.
• The name of the person, or the position authorised to give approval for renewal of the contract or permanent appointment should be specified.

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Lunch breaks

 

• Employers are required to grant a lunch break of one hour after five continuous hours of work.
• This can be reduced to 30 minutes with the agreement of the employee. The lunch break is excluded from the calculation of daily or weekly working hours.

 

 Working hours – full-time, part-time or variable time

 

• An employer must regulate the working hours of employees, provided that: –
  • Maximum ordinary working hours per week is 45 hours, and 9 hours per day if employees work 5 days a week.
  • Legislation provides for procedures to reduce this to 40 hours.
  • The contract can be for a full-time, part-time or variable time as per the operational requirements of the job. The relevant provisions in this section should be completed and the other provisions deleted.

 

Statutory deductions

 

• Employers are required by the law to make deductions from employee salaries and wages, and these statutory deductions are: –
  • Employee taxes
  • Unemployment Insurance Fund (UIF)

 

Deduction other than statutory deductions

 

• Deduction other than statutory deductions may only be made with the agreement of the employee.
• This would include union subscriptions, if the employee has signed a stop-order form authorising this and the union has organisational rights to stop-orders.
• Deductions in respect of money owed by the employee to the employer may not exceed 25 % of the employee’s monthly remuneration.

 

Overtime

 

• Overtime is only payable to employees earning less than the threshold amount set by the Minister of Labour from time to time.
• As at 01 March 2023, the threshold is R241 110.59 per annum.
• Overtime is limited to ten hours per week and is paid at 1.5 times the normal hourly rate for work from Monday to Saturday.
• Overtime on Sundays and public holidays is more complicated to calculate, but is essentially paid at double the normal hourly rate unless Sunday is an ordinary day of work in which event it is paid at 1.5 times the normal hourly rate. Some sectors, however, such as retail are covered by sectoral determinations that provide for different Sunday rates when certain conditions are met.
• Refer to sections 16 and 18 of the Basic Conditions of Employment Act 75 of 1997(BCEA).

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Probation

 

• Probation is normally between three and six months but but may be less or more if circumstances require, for instance, the nature of position and level of responsibility.
• The probationary period may be extended, if necessary, after engagement with the employee.
• Prior to termination within a probationary period, the employee must be given an opportunity to make representations, with the assistance of a fellow employee (including a shop steward, if any).
• If the employee proves to be unsuitable during a probationary period, his/her employment may be terminated with a minimum of legal formalities, and for reasons that may be less compelling than would be required outside of a probationary period.
• It is important however than an employer gives the employee reasonable and appropriate training, guidance, instruction, counselling and evaluation during the probationary period – a “sink or swim” approach should not be adopted.
• Training in company-specific systems, work methods, policies and procedures will be particularly important as the employee cannot be expected to be aware of these.

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Retirement age

 

• There is no mandatory retirement age in terms of the Labour Relations Act 66 of 1995.
• It is important to specify a retirement age in the contract to avoid possible future claims of discrimination on the grounds of age.
• If an employer wants to continue employing the employee past retirement age, this can be done by way of fixed-term contracts specifically provided for in the Labour Relations Act (LRA).

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Written disciplinary code and grievance procedure

 

• If an employer has a written disciplinary code and grievance procedure, and that this should be attached to the contract of employment as an annexure.
• It is advisable to request the employee to sign an acknowledgement of receipt of the document.
• If the code and procedure is attached to the contract as an annexure, clause 14 can be amended to read as follows: “A copy of the Disciplinary Code and Grievance Procedure is attached hereto as Annexure B“.

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Job description

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Guideline for fixed-term contract of employment

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GUIDELINE FOR PERMANENT CONTRACT OF EMPLOYMENT

 

This contract should be used for employees who are employed on an ongoing or indefinite basis, either full-time, part-time or variable time.

 

Lunch breaks

 

• Employers are required to grant a lunch break of one hour after five continuous hours of work.
• This can be reduced to 30 minutes with the agreement of the employee. The lunch break is excluded from the calculation of daily or weekly working hours.

 

 Working hours – full-time, part-time or variable time

 

• An employer must regulate the working hours of employees provided that: –
  • Maximum ordinary working hours per week is 45 hours, and 9 hours per day if the employee works 5 days a week.
  • Legislation provides for procedures to reduce this to 40 hours.
  • The contract can be for a full-time, part-time or variable time as per the operational requirements of the job. The relevant provisions in this section should be completed and the other provisions deleted.

 

Statutory deductions

• Employers are required by the law to make deductions from employee salaries and wages and these statutory deductions are: –
  • Employee Tax
  • Unemployment Insurance Fund (UIF)

 

Deduction other than statutory deductions

 

• Deductions other than statutory deductions may be made with the agreement of the employee.
• This would include union subscriptions, if the employee has signed a stop-order form authorising this and the union has organisational rights to stop-orders.
• Deductions in respect of money owed by the employee to the employer may not exceed 25 % of the employee’s monthly remuneration.

 

Overtime

 

• Overtime is only payable to employees earning less than the threshold amount set by the Minister of Labour from time to time.
• The threshold rate, as at 01 March 2021, is R211 596.30 per annum.
• Overtime is limited to 10 (ten) hours per week and is paid at 1.5 times the normal hourly rate for work from Monday to Saturday.
• Overtime on Sundays and public holidays is more complicated to calculate, but is essentially paid at double the normal hourly rate unless Sunday is an ordinary day of work in which event it is paid at 1.5 times the normal hourly rate. Some sectors, however, such as retail are covered by sectoral determinations that provide for different Sunday rates when certain conditions are met.
• Refer to sections 16 and 18 of the Basic Conditions of Employment Act 75 of 1997 (BCEA).

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Probation

 

• Probation is normally between 3 (three) and 6 (six) months, but may be less or more if circumstances require e.g. nature of position and/or level of responsibility.
• Prior to termination within a probationary period, the employee must be given an opportunity to make representations, with the assistance of a fellow employee (including a shop steward, if any).If the employee proves to be unsuitable during a probationary period, his/her employment may be terminated with a minimum of legal formalities, and for reasons that may be less compelling than would be required outside of a probationary period.
• It is important however than an employer gives the employee reasonable and appropriate training, guidance, instruction, counselling and evaluation during the probationary period – a “sink or swim” approach should not be adopted.
• Training in company-specific systems, work methods, policies and procedures will be particularly important as the employee cannot be expected to be aware of these.
• The probationary period may be extended, if necessary, after consultation with the employee.

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Retirement age

 

• There is no mandatory retirement age in terms of the Labour Relations Act.
• It is important to specify a retirement age in the contract to avoid possible future claims of discrimination on the grounds of age.
• If an employer wants to continue employing the employee past retirement age, this can be done by way of fixed-term contracts specifically provided for in the Labour Relations Act 66 of 1995 (LRA).

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Written disciplinary code and grievance procedure

 

• If an employer has a written disciplinary code and grievance procedure, and that this should be attached to the contract of employment as an annexure.
• It is advisable to request the employee to sign an acknowledgement of receipt of the document.
• If the code and procedure is attached to the contract as an annexure, clause 14.3 can be amended to read as follows: “A copy of the Disciplinary Code and Grievance Procedure is attached hereto as Annexure B “

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Termination of employment

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Job description

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What conduct is expected from an employer and employee in terms of the contract of employment?

 

The legal principles applicable to the employment relationship in South Africa come from a variety of sources. These include labour legislation and the common law. The Common Law is a body of law, a set of principles, that has been developed by South African Courts over decades, initially drawing on Roman-Dutch and English law. The primary source of labour law
is legislation or statutes, the common law remains an important and a binding source of law. For example, most of the South African law of contract is to be found in the common law. In terms of common law, the employment relationship is a contract between the employer and the employee.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text] [/vc_column_text][vc_column_text]In the employment context, the common law expects certain conduct from both the employer and the employee and implies certain terms and expectations from the employment relationship even though the parties have not inserted them into the employment contract or applied their minds to them. For example, employees are under a common law duty to act in good faith in the context of their employer’s business, they must work with proper care and diligence and refrain from misconduct. Employers are obliged to remunerate employees for the work that they do and provide safe working conditions.

 

What are the obligations of an employer and the duties of an employee in terms of the contract of employment?

 

A contract of employment can be defined as an agreement between an employee and an employer where the employee works for the employer and assists in carrying on or conducting the business of the employer. The employee is entitled to receive remuneration for this.

An employment relationship is established between the employer and the employee, whether there is a written contract or not.

In terms of the contract of employment the employer and the employee have certain obligations and duties.

These are set out below:

 

Obligations of an employer

 

• To receive the employee into service;
• To remunerate the employee;
• To ensure safe working conditions;
• To treat the employee fairly, and with respect;
• To comply with general contractual obligations;
• To apply statutory obligations.

 

Duties of an employee

 

• To enter and remain in service;
• To maintain reasonable efficiency;
• To further the employer’s business interests;
• To obey lawful and reasonable instructions;
• To refrain from misconduct generally;
•  To act in good faith, and to be loyal to the employer.

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Expected conduct of employers and employees

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How to ensure that selection and recruitment practices are non-discriminatory

 

Job applicants are protected against unfair discrimination in the same way as employees are in terms of the Employment Equity Act 55 of 1998 (EEA). Such protection covers all aspects of the recruitment process from the advertisement all the way to the final appointment stage.  It is important for employers to be aware of the requirements for keeping the process within the requirements of the EEA, the Constitution of the Republic of South Africa, 1996 (the Constitution) or other related legislation. South African employment equity legislation is designed to address job reservation, exclusion and systematic discrimination, particularly of black people, women and people with disabilities that took place under apartheid.

 

What is fair and unfair discrimination?

 

The International Labour Organisation defines discrimination in Convention No. 111 as “any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.”

 

The legal approach in South Africa is that discrimination may be regarded as fair or unfair. Unfair discrimination is prohibited in the Constitution and in the EEA.

 

Distinguishing between fair and unfair discrimination

 

Fair discrimination takes place when the employer treats employees or job applicants differently because of the requirements of the job or in order to achieve affirmative action of historically-disadvantaged individuals. For example, it may not be unfair for an airline to exclude sight impaired people from applying for pilot positions. Other instances of fair discrimination may include higher pay for an employee with long service compared with the pay received by a newly employed person in the same company who is performing the same or similar work, or a retirement policy which requires retirement at a particular age.

 

The Employment Equity Act prohibits unfair discrimination against an employee or job applicant in any employment policy or practice on the ground of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, political opinion, culture, language, birth or on any other arbitrary ground. Unfair discrimination may be direct or indirect.

 

What is direct discrimination?

 

Direct discrimination is where the employer treats an employee or job applicant differently and unfairly on one of the grounds listed above. The ground is easily identifiable as the reason for different treatment. For example, an employer decides not to promote a woman employee on the basis of the belief that a man is better suited for the job. The key factor is that the differentiation is not based on job requirements such as relevant skill, experience or qualifications, but rather on the basis of the sex of the employee.

 

What is indirect discrimination?

 

Indirect discrimination takes place when a business has a policy or practice in place that appears to be neutral, but it disproportionately impacts people who belong to one group more than others in an adverse way and on a discriminatory ground. For example, a policy that specifies that only full-time staff may apply for promotion appears to be a neutral policy but, in a workplace where those who work half days (an example of part-time employment) are predominantly women, such a policy may serve as a form of indirect discrimination against women. The impact on women is disproportionate and is likely to be unfair. However, where the employer can show that such a policy is rational and justifiable, for example, the role is not suited to half-day work, it may be found that the policy does not amount to unfair discrimination.

 

The employer must ensure that its policies and practices are such that they do not indirectly deny employees access to employment, equal opportunities and benefits on discriminatory grounds.

 

JOB DESCRIPTIONS

 

How can one ensure that job descriptions do not directly or indirectly unfairly discriminate against potential applicants?

 

Job descriptions are important to ensure that the employer can identify key requirements for a particular job. It is important that job applicants or employees are all treated and considered based on a consistent standard that are not based on grounds of unfair discrimination. This removes any bias, prejudice and personal interest which can be problematic in recruitment.

 

The employer should ensure that job descriptions outline the role and duties of the job. It is important to ensure that these descriptions are realistic and that they are set out so that the descriptions are linked to the job rather than serving as a means to act as a barrier to certain potential applicants. This should include:

• Job title;
• Job level (in the absence of company levels and grading, it is useful to use the categorisation of occupational levels provided in the Employment Equity Regulations, 2014 in this this regard i.e.:
  • Top management / executives
  • Senior management, professionally qualified and experienced professionals / mid management
  • Skilled staff, clerical staff
  • Skilled technical and academically qualified / junior management
  • Semi-skilled and discretionary decision making
  • Unskilled and defined decision making)
• Job reporting lines;
• Purpose of the job;
• Job accountability – functions and responsibilities;
• Requirements including education, experience, knowledge, skills and competencies.

 

Generally, when an employer communicates about a job vacancy or advertises a post it is to ensure that the employer attracts the most suitable candidate for the job. Generally, for a small business, the job vacancy can be communicated through a variety of channels such as social media, in the local newspaper, on community notice boards, with related businesses or relevant stakeholders. It is not a requirement to advertise in a newspaper, but it is important to ensure that the advertising or communication about a vacant post should rely on the job specification and that it should not inadvertently exclude historically disadvantaged persons.

 

Care must be taken to ensure that the wording of job advertisements does not have the effect of stereotyping the type of candidate that is being sought or excluding potential applicants on either the listed grounds of unfair discrimination or on arbitrary grounds.   For example, when writing the advertisement, the employer should not identify a particular discriminatory attribute such as, ‘Jason’s Burgers is looking full time and part time drivers.  We are looking for energised, young and dynamic people.’ In this example, use of the word ‘young’ may potentially exclude potential applicants on the ground of age.  The advert must should not specify that the applicant must be a specific age, gender, religion or race unless this is justifiable in terms of the job requirement. Job advertisements should place emphasis on competencies required for the job, and should accurately reflect the inherent or essential requirements (i.e. the core functions) of the job.

 

APPLICATION FORMS

 

What type of job application forms must an employer use?

 

Use of a job application form is optional. Where used it should focus on the requirements of the job and contain biographical information to provide an employer with an easy mechanism for evaluating applications. Information that can be included on a form is:

• Name;
• Age or Date of Birth;
• Citizenship or a job permit may be required for compliance with laws relating to the employment of foreign nationals;
• Race and gender may be required for purposes of promoting employment equity;
• Contact information;
• Previous positions held;
• Training and experience;
• Skills;
• Experience;
• Educational qualifications; and
• References.

 

What should an employer avoid placing in a job application form?

 

Generally, there is no hard and fast rule with regards to job application forms, but there is certain information that an employer should avoid placing in an application form, for example, an applicant’s religion, marital status, the number of children or dependents, unless this is specifically required for the job (for example, when a particular Church is seeking the services of a Priest from a particular Religious denomination).

 

TESTING

 

When may an employer conduct psychometric testing?

 

Psychological or similar testing of an employee is prohibited according to section 8 of the employment equity Act, unless the test or assessment being used:

• Has been scientifically shown to be valid and reliable;
• Can be applied fairly to all employees;
• Is not biased against any employee or group;
• Has been certified by the Health Professions Council of South Africa, or any other body which may be authorised by law to certify those tests or assessments.

 

Generally, psychological testing can be used to assess whether a candidate’s abilities match those required to perform the job provided that such testing or assessment complies with the EEA.

 

Is medical testing allowed?

 

Medical testing includes any test or inquiry to ascertain whether a job applicant or an employee has any medical condition. Employers must ensure that in conducting interviews they do not ask questions about the job applicants medical condition or health unless this is related to the requirements of the job. If the employer makes such an enquiry it may result in an unfair discrimination claim if the applicant believes there is a link between the enquiry and him/her subsequently not getting the job.

 

Medical testing is prohibited, unless-

• Legislation permits or requires testing; or
• It is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employment benefits or the inherent requirements of a job.

 

By way of example, it may be permissible for applicant pilots to be assessed in order to ascertain whether they have the required standard of vision to perform the job.

 

It is important to highlight that contractual provisions that seek to introduce medical testing must comply with the law. An employer cannot rely on a job applicant’s consent as a justification for medical testing especially if there is no apparent need or link to the nature of the job concerned.

 

According to section 7(2) of the EEA testing of an employee to determine HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court.

 

When may an employer conduct medical testing on a disabled job applicant?

 

In certain instances, in order to attempt to accommodate a person with a disability, an employer may make a job offer conditional on medical or functional testing.  Testing must comply with the statutory requirements and should determine if the applicant is able to perform the essential functions of the job with or without reasonable accommodation or without there being a risk to the employee’s health. An employer may test applicants with disabilities and not require all other applicants to undergo testing.

 

The employer may withdraw the job offer if the testing shows that:

• Accommodation requirements would create unjustifiable hardship; or
• The applicant is unable to perform the inherent requirements of the job; and
• There is an objective justification that relates to health and safety.

 

The employer must ensure that the tests conducted do not unfairly exclude people with disabilities and should not be prejudicial as to how they are applied, assessed, or interpreted.

 

SELECTION

 

Affirmative Action

 

All employers, even if not designated, are encouraged to implement affirmative action measures by employing persons that have been historically disadvantaged on the basis of race, gender or disability. In this regard employers are encouraged to select a suitably qualified person that is historically disadvantaged, even if a competing candidate may have more experience or skills than the historically disadvantaged person.

 

Designated employers are those that employ in excess of 50 employees or whose business exceeds a certain turnover in terms of the Employment Equity Act. Designated employers are obliged to implement affirmative action measures in terms of the Employment Equity Act.

 

How does an employer assess whether a prospective employee is suitably qualified?

 

A suitably qualified person has the necessary qualifications, skills and experience to perform the critical functions of the job. According to the section 20 (3) of the EEA a person may be suitably qualified for a job as a result of any one of, or any combination of, that person’s:

• Formal qualifications;
• Prior learning;
• Relevant experience; or
• Capacity to acquire, within a reasonable time, the ability to do the job.

 

The employer must review all the factors and determine whether that person has the ability to do the job in terms of any one of, or any combination of those factors.

 

Factors to consider when setting out the core requirements of the job

 

An employer may differentiate between applicants for employment based on inherent and requirements of a job.  A core requirement is one which is a permanent, essential element of the job, or an ‘indispensable attribute’ of the job.

 

Employers should avoid stereotyping or using proxies for the core requirements. For example, a job which requires heavy manual labour and physical strength should state so as part of the inherent requirements of the job, rather than specify a young male is required for the position.

 

INTERVIEWS

 

How should an employer conduct an interview in line with legislation?

 

It is recommended that an employer develop a standard interview questionnaire. This is a questionnaire prepared before the interview listing a set of questions before the interview that will be asked each applicant interviewed to determine suitability for the job. The interview questionnaire should be based on the job description, particularly essential elements of the job and qualification, experience and competency specifications.

 

What questions are likely to be discriminatory and should be avoided in an interview process?

 

There are questions that an employer should steer away from in an interview process. For example, the following list of questions are potentially discriminatory, and unless justified with reference to the core requirements of the job should be avoided-

• Are you pregnant or planning on having children?
• How will you manage this job if you have children?
• Which religion are you affiliated with?
• Aren’t you too old or young for such a post?
• What is your sexual orientation?
• Are you married?
• Are you HIV-positive?
• Which political party do you vote for?

 

REFERENCE AND BACKGROUND CHECKS

 

Is an employer permitted to conduct background checks?

 

Generally, an employer may conduct integrity checks, such as verifying the qualifications of an applicant and contacting references. Investigating whether an applicant has a criminal record may be done with the consent of the employee if this is relevant to the requirements of the job. In some instances, legislation or industry regulations may require that an employee should declare whether s/he has a criminal record.

 

MAKING AN OFFER OF EMPLOYMENT

 

What must an employer consider when making an offer of employment to similarly situated employees?

 

An employer may pay two employees different salaries as long as this differentiation is rational and not based on a discriminatory ground. The employer may pay employees differently based on the following criteria:

• the responsibility demanded of the work, including responsibility for people, finances and material;
• the skills, qualifications, including prior learning and experience required to perform the work, whether formal or informal; and
• physical, mental and emotional effort required to perform the work.

 

The employer may also take into account to the extent that it is relevant, the conditions under which work is performed, including physical environment, psychological conditions, time when and geographic location where the work is performed. In addition to the criteria specified any other factor indicating the value of the work may be taken into account in evaluating work, if the employer shows that the factor is relevant to assessing the value of the work.  The assessment must be conducted in a manner that is free from bias on grounds of race, gender or disability, any other listed ground or any arbitrary ground that is prohibited in terms of section 6(1) of the Act.

 

What are the rational and fair grounds that the employer can rely on to pay employees differently?

 

The employer can pay employees differently if the difference is fair and rational and based on one or more grounds including, but not limited to:

• seniority or length of service, qualifications, ability, competence or potential above the minimum acceptable levels required for the performance of the job;
• performance, quantity or quality of work;
• scarce skills;
• demotion as a result of organisational restructuring;
• where an individual is employed temporarily in a position for purposes of gaining experience or training; or
• any other relevant factor.

 

The above factors need to be applied rationally. This means that the employer should not place undue weight on a single factor. For example, if a receptionist has twelve years’ service and another has two years, it is not rational pay one employee ten times as much as the other. The two receptionists should earn within the same pay range, allowing for one employee to be paid slightly higher and the other lower.

 

Note, an employer may justify the value assigned to an employee’s work by reference to the classification of a relevant job in terms of an applicable collective agreement or sectoral determination made by the Minister of Employment and Labour in terms of section 55 of the Basic Conditions of Employment Act 75 of 1997.[/vc_column_text][vc_raw_html]JTVCZXh0ZXJuYWwtbGluayUyMHRpdGxlJTNEJTIyRG93bmxvYWQlMjBQREYlMjAlMjgxMjZLQiUyOSUyMiUyMHVybCUzRCUyMmh0dHBzJTNBJTJGJTJGc21lbGFib3Vyc3VwcG9ydC5vcmcuemElMkZ3cC1jb250ZW50JTJGdXBsb2FkcyUyRjIwMTglMkYwNSUyRkhvdy10by1HdWlkZS1zZWxlY3Rpb24tYW5kLXJlY3J1aXRtZW50LXByYWN0aWNlcy1ub24tZGlzY3JpbWluYXRvcnktMjAyMy1maW5hbC5wZGYlMjIlMjB0eXBlJTNEJTIycGRmJTIyJTVEJTVCJTJGZXh0ZXJuYWwtbGluayU1RCUwQQ==[/vc_raw_html][/vc_column][/vc_row]

How to ensure that selection and recruitment practices are non-discriminatory

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What is induction and on-boarding and why should an employer subject its employees to this?

Induction is an event or series of events where you introduce the new employee to the job and to the organisation.

 

It can be formal, or informal or a combination thereof and assists new employees to integrate into the new environment. The process includes physically showing the employees around the workplace and taking them through various workplace procedures and requirements.

 

This includes-

• Entry and exit to the workplace;
• Working times;
• Meal times and breaks;
• Rules, procedures and regulations;
• Company policies and benefits;
• An introduction to work colleagues;
• How and when payment takes place; and
• Roles, responsibilities and expectations

 

On-boarding is a longer process through which the new employee learns the attitudes, skills, knowledge and behaviours required to function effectively. It assists in building relationships, and ensures that expectations on both sides are realistic.

 

Attachment or buddy allocation – it is a good idea to allocate a co-worker / buddy in a similar function to the new employee who will show him/her how the workplace functions and introduce him/her to the applicable managers and co-workers. The buddy will support the new employee for the first few days and orientate him/her into the new environment and to what performance outputs are required with the new job. This will also provide the new employee with an opportunity to understand the business systems and processes and work flow.[/vc_column_text][vc_raw_html]JTVCZXh0ZXJuYWwtbGluayUyMHRpdGxlJTNEJTIyRG93bmxvYWQlMjBQREYlMjAlMjg2MktCJTI5JTIyJTIwdXJsJTNEJTIyaHR0cCUzQSUyRiUyRnN0YWdpbmcudGVuYWthc3RyaWJlLmNvLnphJTJGY2NtYSUyRndwLWNvbnRlbnQlMkZ1cGxvYWRzJTJGMjAxOCUyRjA1JTJGRG9jdW1lbnQtMS4xRC1Ib3ctdG8tZ3VpZGUtaW5kdWN0aW9uLWFuZC1vbi1ib2FyZGluZy1sdy12cC1hYi0yLU1heS0xOC0xLnBkZiUyMiUyMHR5cGUlM0QlMjJwZGYlMjIlNUQlNUIlMkZleHRlcm5hbC1saW5rJTVE[/vc_raw_html][/vc_column][/vc_row]

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How does an employer select the right employee?

STEP 1: Shortlisting of job applicants based on the documentation submitted

 

• This is the process whereby the employer considers all applications based on the documentation submitted, and places those who best meet the criteria on a shortlist.
• The shortlist selection should be based on objective factors such as the CV and relevant documents, relative to the job description. Short listing must not be based on assumptions, second hand knowledge, hearsay or potentially discriminatory criteria.
• To encourage employment of historically excluded individuals, when shortlisting, the employer could include consideration of applicants from designated groups.

 

STEP 2: Shortlisting of job applicants based on additional screening (optional)

 

• Additional screening can be used where a large number of applicants make the shortlist following screening based on the documentation.
• Additional screening could take the form of a telephonic conversation, request for additional information or reference checking, for example.
• Additional screening should apply to all shortlisted applicants and care should be taken to ensure that it is not directly or indirectly discriminatory.

 

STEP 3: Interviewing short listed applicants

 

• An interview is a selection tool that enables the employer to meet directly with a job applicant and assess the individual’s suitability for the job. With new technology, this interview could be in person, or even over video conferencing or Skype, provided that the technology is not prohibitive.
• Interviewers should be proficient in interviewing skills; the evaluation mechanism to be used; employment equity and affirmative action.
• Employers should use a standard interview questionnaire and an approach that is relevant to the particular job. The interview questions should be prepared in advance based on the job description. Similar questions should be asked of each applicant.
• The questions asked must be based on the job description and competency specifications i.e. qualifications, requirements, skills, knowledge, experience and attributes.
• The interviewer must take care not to ask any questions that may be discriminatory, and should be careful not to unfairly discriminate against job applicants with disabilities.

Note: The employer is required to make reasonable accommodation for the needs of applicants with disabilities.[/vc_column_text][vc_btn title=”See Code of Good Practice: Employment of People with Disabilities” style=”flat” shape=”round” color=”green” size=”lg” align=”center” button_block=”true” el_class=”is-hidden-tablet is-hidden-touch”][vc_column_text]

STEP 4: Reference checks

 

• Reference checking is strongly recommended.
• The purpose of a reference check is to verify information provided by an applicant.
• Reference checks should not unfairly discriminate, and the process of reference checking must be conducted equitably in relation to all applicants.
• Applicants must give written permission for reference checks to be undertaken and may also be requested to provide details of referees.

 

Testing as part of the selection process

 

Medical testing is prohibited unless legislation permits or requires testing, or it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employment benefits or the inherent requirements of a job. Some jobs may require medical or functional testing. Such testing may also be a condition for the employment of persons with, for example, low immune systems and who may be vulnerable to exposure to illnesses such as tuberculosis in certain work settings, or for a person with a particular disability in order to determine if the individual is capable of performing the job.

 

HIV testing is prohibited unless such testing is determined to be justifiable by the Labour Court.

Psychometric or psychological testing is prohibited unless the test or assessment being used has been scientifically shown to be valid and reliable; can be applied fairly to all employees; is not biased against any employee or group; and has been certified by the Health Professions Council of South Africa.[/vc_column_text][vc_column_text]

[/vc_column_text][vc_column_text]Numeracy and literacy testing, while not directly referred to in the Employment Equity Act, may only be done if the tests are fair, valid, applied to all applicants and directly relevant to the requirements of the job. These should be used to identify candidates with potential and persons who are suitably qualified.

 

Credit checks, criminal record checks, lie detector tests and other similar tests and checks may only be administered if required by legislation or with the express agreement of the job applicant and may only be carried out if they are directly relevant to the requirements of the job. In some instances, qualification checks (basic and post school education and training) are permitted if the qualification is a requirement of the job.[/vc_column_text][vc_btn title=”See Employment Equity Act: Chapter II – Prohibition of Unfair Discrimination” style=”flat” shape=”round” color=”green” size=”lg” align=”center” button_block=”true” el_class=”is-hidden-tablet is-hidden-touch”][vc_column_text]

How to decide if the applicant is suitably qualified?

 

As per the Employment Equity Act, a suitably qualified person has the necessary qualifications, skills, knowledge and experience to perform the critical or essential functions of the job, with reference to:

• Formal qualifications;
• Prior learning;
• Relevant experience; or
• Capacity to acquire, within a reasonable time, the ability to do the job.

 

The employer must review all the factors and determine whether that person has the ability to do the job in terms of any one of, or any combination of those factors. An employer may not unfairly discriminate against a person solely on the grounds of that person’s lack of experience.

 

Once the relevant candidate has been selected, the contracting process will commence.[/vc_column_text][vc_raw_html]JTVCZXh0ZXJuYWwtbGluayUyMHRpdGxlJTNEJTIyRG93bmxvYWQlMjBQREYlMjAlMjg4OEtCJTI5JTIyJTIwdXJsJTNEJTIyaHR0cCUzQSUyRiUyRnN0YWdpbmcudGVuYWthc3RyaWJlLmNvLnphJTJGY2NtYSUyRndwLWNvbnRlbnQlMkZ1cGxvYWRzJTJGMjAxOCUyRjA1JTJGRG9jdW1lbnQtMS4xQy1Ib3ctdG8tR3VpZGUtSG93LWRvZXMtYW4tZW1wbG95ZXItc2VsZWN0LXRoZS1yaWdodC1lbXBsb3llZS1sdy12cC1hYi12cC0zTWF5LTE4LTEucGRmJTIyJTIwdHlwZSUzRCUyMnBkZiUyMiU1RCU1QiUyRmV4dGVybmFsLWxpbmslNUQ=[/vc_raw_html][/vc_column][/vc_row]