Affirmative Action Definition

Affirmative Action Definition

What is the Definition of Affirmative Action?

 

What does Affirmative Action Mean?

 

Affirmative Action refers to the methods used to try and achieve Employment Equity. It is an attempt to redress the imbalances caused by our history of Colonialism and Apartheid and ensure that all people have equal employment opportunities and are equitably represented in all categories and levels of employment.

 

The History of Affirmative Action

 

The term ‘Affirmative Action’ was first used in the USA in 1961, when President John F Kennedy signed an order (Executive Order No 10925) including a provision that government contractors “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin.”

In South Africa, Affirmative Action started with the Employment Equity Act and the Broad-Based Black Economic Empowerment Act which together aim to achieve workplace equality through advancing people from designated groups (defined as ‘black people’, women, and those with disabilities).

How does Affirmative Action work?

 

Employment Equity legislation requires companies with over 50 employees (or who exceed a certain turnover based on their industry) to do the following:

  • Consult with their employees (or their representatives) from all levels and categories within the company, including designated groups and non-designated groups
  • Conduct an analysis of current workplace policies, practices, procedures, and the working environment, in order to identify barriers that adversely affect those from designated groups
  • Design and implement plans to improve their workplace equity and report on such plans to the Department of Labour annually or every two years, depending on the number of employees in the organisation.
When are taxes due?

When are taxes due?

When are taxes due in South Africa?

 

VAT payments (VAT201)

VAT (Value Added Tax) payments are due monthly on the last business day of the month.

Employers Tax (EMP201)

Employers Tax (PAYE, SDL and UIF) payments are due monthly on the 7th of the month, or the last business day before that.

The interim reconciliation for the first 6 months of the tax year is due on the last business day of October.

The annual reconciliation is due on the last business day in May.

Provisional Taxpayers

Provisional Taxpayers (those who earn an income other than a salary) need to submit an interim submission and payment for the first 6 months of the tax year by the last business day in August.

The annual submission and payment is due on the last business day in February.

Tax returns

Tax returns need to be submitted during tax season which is from July to November.

Employment Verification

Employment Verification

Employment Verification

 

What is Employment Verification?

Employment Verification usually refers to the process of verifying a prospective employee’s employment history to ensure that they haven’t falsified any information on their CV. Sometimes there may be other reasons why employment verification is done, for example if someone is trying to borrow money or perhaps rent a property, then the bank or landlord may wish to check that the person is employed and what their salary is.

How does Employment Verification work?

Normally it just involves a phone call to the employees current or previous place of employment, to verify that the details they put on their CV are correct. In some cases it means getting a letter written by the employer on their letterhead, stating the details of the employees position and the dates that they worked at the company.

How to write an Employment Verification Letter

An employment verification letter is very simple.

It should just contain the employee’s name and ID number, as well as their job title and the dates that they have been employed by your company.

It could also list the most recent salary, but this is optional.

All of the above should be on your letterhead, and signed by a manager or other authority figure.

You could also put your thoughts about the employee, like a testimonial, but this is usually not necessary for an Employment Verification Letter.

Here is an possible example (The details in red between the square brackets [ ] are to be replaced with the relevant details):

 

[Company Letterhead and contact details]

To whom it may concern

This letter serves to confirm that [Name of employee] (ID Number: [ID Number]) has been employed at [Name of company] as a [Job title] from [Start date] to [End date].

Yours Faithfully

[Manager’s Name]

 

Click on the link here to download a MS Word version of the Employment Verification Letter Doc.

 

How to do Employment Verification

This would normally mean phoning the company/ies that the prospective employee worked at and verifying that the details they have written on their CV are correct. This could be their position, the dates they worked at the company, and sometimes their salary. You may also want to get a reference from their manager as to how they performed on the job.

If the prospective employee has listed a phone number on their CV for a reference or employment verification check then it is usually a good idea to Google the company first and to phone in on the number that they have listed on their website, to avoid any possibility that the number you have been given on the CV is false. If they have listed a person by name, then you might also want to Google the following (replacing the red values in square brackets with the respective URL and name):

site:[Company URL] [Contact Name] 

This will search the company URL for the person’s name to see if you can find the person that they have listed, and make sure that they are in fact working in the position that they have said they are, and aren’t just a friend at the company who they have prepped to take a verification call from. This will only work if their name is listed somewhere on the site of course.

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Unfair Dismissal

What is Unfair Dismissal in South Africa?

Unfair Dismissal

 

What is Unfair Dismissal in South Africa?

The fairness of a dismissal is decided in two ways – substantive fairness and procedural fairness.

Substantive Fairness

Substantive fairness is decided by whether or not there was a fair reason to dismiss the employee and was it appropriate under the circumstances to dismiss the employee.

There are three reasons by which you can fairly dismiss an employee:

  1. Misconduct (The employee has done something wrong)
  2. Incapacity (The employee does not do the job properly, or is unable to due to ill health or disability)
  3. Retrenchment or redundancy (The employer is cutting down on staff or restructuring the work done)

Procedural Fairness

Did the employer handle the dimissal procedure fairly?

The employee must always have a fair hearing before being dismissed, where they are able to give their side of the story. You cannot fairly dismiss someone without a disciplinary hearing.

Even if the employee is at fault, the employer still needs to pay the right wages, leave pay and notice pay.

It is completely within the employees rights to refer the dismissal to the CCMA for conciliation.

See below for more about fair procedures for each of the kinds of dismissal:

Misconduct

It is best for employers if they have clear rules of conduct for employees to follow. A dismissal for misconduct can only really be seen to be fair if the following is true:

  1. The worker broke a rule at the workplace.
  2. The rule was reasonable and necessary.
  3. The worker should have known about the rule.
  4. There is a consistent application of the rule. The employer does not selectively apply the rule.
  5. Dismissal is an appropriate action, as opposed to disciplinary action or a lesser penalty.

Employees should not be dismissed for minor infractions. Corrective discipline should be the first resort, to bring the employee into line. Repeated breaking of the rules can incur greater and greater penalties.

For first offences, only serious offences should result in dismissal. Examples could be physical assault, intentional damage to the employers property, gross insubordination, or putting others safety at risk.

Employees can be dismissed for engaging in a strike without following the proper procedure. A trade union official would need to be informed, with an ultimatum with enough time for the ultimatum to be properly considered. The employees should not be dismissed if they return to work before the ultimatum is reached.

Employers need to keep disciplinary records for each employee showing any offences comitted by the employee, what disciplinary action was taken, and why. Repeated misconduct must result in warnings, with the final warning for repeated or serious misconduct being a written warning.

In order for a hearing to be considered as fair:

  • If the employee is a shopsteward, then the union will need to be notified about the hearing.
  • The employee must be informed about which charges are being brought against them, and they must be given time to prepare for the hearing.
  • The employee must be given an opportunity to be present at the hearing and present their case.
  • The employee must be allowed to be represented by a union official or co-worker.
  • The employee must be allowed to view documents, and cross-examine any evidence used against them.
  • All witnesses to the misconduct should be present at the hearing, and the employee should be given an opportunity to cross-examine said witnesses.
  • The employee should be allowed to call witnesses of their own.
  • The employee should be given reasons for any actions taken against them.

Incapacity

Dismissals for incapacity can be for poor work performance, ill health, disability or incompatibility.

When deciding if a dimissal for incapacity was fair or not, the following needs to be considered:

  • Did the employee fail to work to a given standard?
  • Was the employee aware of the expected standard?
  • Was the employee given a fair chance to meet the standard?
  • Is dismissal a fair punishment?

A dismissal for poor performance can only be seen as fair if:

  • The employee was given sufficient training, evaluation, guidance and advice
  • Their performance was assessed over a suitable period of time
  • The reasons for poor performance were suitably investigated
  • Alternatives to dismissal had been explored
  • The employee was given a chance to be heard before the dismissal

Dismissals for poor health or disibility can only be seen as fair if:

  • The degree and duration of incapacity has been investigated
  • Alternatives to dismissal have been explored
  • An attempt has been made to find alternative work for the employee, or to adapt their work to make it possible for the employee to continue working.
  • The employee has been given a chance to be heard.

All of the following also needs to be considered:

  • How badly is the employee injured or disabled?
  • How likely are they to remain ill or disabled?
  • What is the reason for the incapacity?

More effort is expected from the employer if the employee was injured or became sick in the course of their duties.

Retrenchment or Redundancy

Employers are allowed to retrench workers for the following reasons:

  1. Economic – e.g. the employer is losing money.
  2. Technological – e.g. employees are being replaced by machinery, or need different skills to operate new machinery.
  3. Structural – e.g. the business is being restructured and two departments are being consolidated, so it is no longer necessary to have two seperate heads of department.

When considering retrenchment, the employer will need to consult whoever the collective agreement says it needs to consult, or failing that the workplace forum, or failing that the union or, if none exists, then the workers themselves.

A written notice needs to be given to the relevant persons, inviting them to consult, which should include the following:

  1. Reasons for the retrenchment
  2. Alternatives that have been considered (including redeployment)
  3. Number of employees to be retrenched
  4. How the decision will be made regarding who will be retrenched
  5. When dismissals shall take place
  6. How much severance will be paid
  7. What other aid can be given to those who will be retrenched
  8. Future re-employment prospects
  9. Number of people employed
  10. How many retrenchments have been made in the last 12 months

Those invited to consult need to be given a chance to speak and make suggestions on the retrenchment. If the employees have given their representations in writing, then the employer will need to make their replies in writing.

The consultation should aim to reach a consensus on the following:

  1. Whether retrenchment is justified and ways to avoid retrenchment
  2. How to reduce the number of people to be retrenched
  3. How to limit the harsh effects of retrenchment
  4. How to select those to be retrenched
  5. Negotiation on severance pay

If an agreement cannot be reached, then the matter can be referred to the CCMA.

Automatically Unfair Dismissal

According to Section 187 of the Labour Relations Act, dismissing someone for one of the following reasons is ‘automatically unfair’:

  1. Participating in a protected (legal) strike or intending to do so
  2. Refusing to do the work of a colleague who is participating in a protected strike (unless their refusal will endanger life or health)
  3. Not accepting an employers demand or coercion on a matter of mutual interest (ie. dismissing someone for not accepting your pay increase)
  4. For exercising their rights according to the LRA
  5. For participating in proceedings against the employer, or reporting the employer to a relevant authority
  6. Pregnancy or intended pregnancy
  7. Arbritary discrimination based on race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility
  8. The dismissal was related to the takeover of a going concern
  9. Taking part in lawful union activities
  10. Due to a disclosure in terms of the ‘Disclosure of Information Act’

Unfair Dismissal – How much Compensation

The exact amount of compensation will be up to the judge or arbitrator, but the Labour Relations Act recommends a maximum of 12 months salary for normal unfair dismissal or up to 24 months salary for an automatic unfair dismissal.

Similar Content:

Disciplinary Procedure

Constructive Dismissal