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HUMAN RESOURCES - CODE OF GOOD PRACTICE

DEPARTMENT OF LABOUR

DRAFT

HUMAN RESOURCES - CODE OF GOOD PRACTICE

Download in MS Word

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. 

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: niresh.singh@labour.gov.za 

Ntsoaki Mamashela: ntsoaki.mamashela@labour.gov.za 

Thabile Kunene: thabile.kunene@labour.gov.za 

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).


1. FOREWORD 3

2. OBJECTIVE 3

3. SCOPE AND LEGAL PRINCIPLES 4

4. STRUCTURE OF THE CODE 5

5. IMPLEMENTING EMPLOYMENT EQUITY 6

PART A: COMMENCING EMPLOYMENT 18

6. ATTRACTION 18

7. RECRUITMENT & SELECTION 20

8. INDUCTION 27

9. PROBATION 29

10. MEDICAL AND PSYCHOLOGICAL ASSESSMENTS 31

PART B: DURING EMPLOYMENT 34

11. TERMS AND CONDITIONS OF EMPLOYMENT 34

12. REMUNERATION 36

13. JOB ANALYSIS AND JOB DESCRIPTIONS 39

14. JOB ASSIGNMENTS 41

15. PERFORMANCE MANAGEMENT 43

16. SKILLS DEVELOPMENT 46

17. PROMOTION AND TRANSFER 49

18. CONFIDENTIALITY AND DISCLOSURE OF INFORMATION 51

19. CREATING EQUITY IN THE WORKING ENVIRONMENT 54

20. RETENTION 58

21. DISCIPLINE, GRIEVANCE AND DISPUTE RESOLUTION 59

PART C: ENDING EMPLOYMENT 63

22. EXIT INTERVIEWS 63

23. TERMINATING EMPLOYMENT 65

 

 

1. FOREWORD

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 initiatives.

2. OBJECTIVE

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 areas:

2.2.1. Commencing Employment:

2.2.1.1. Attraction

2.2.1.2. Recruitment and selection

2.2.1.3. Induction

2.2.1.4. Probation

2.2.1.5. Medical and psychological assessments

2.2.2. During employment:

2.2.2.1. Conditions of Employment

2.2.2.2. Remuneration

2.2.2.3. Job analysis and job descriptions

2.2.2.4. Job assignments

2.2.2.5. Performance management

2.2.2.6. Skills development

2.2.2.7. Promotion and transfer

2.2.2.8. Confidentiality and disclosure of information

2.2.2.9. The working environment and facilities

2.2.2.10. Retention

2.2.2.11. Discipline, grievance and dispute resolution

2.2.3. Ending employment

2.2.3.1. Exit interviews

2.2.3.2. Termination of employment

3. SCOPE AND LEGAL PRINCIPLES

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 Acti.

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. STRUCTURE OF THE CODE

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.

5. IMPLEMENTING EMPLOYMENT EQUITY

5.1. SCOPE

5.1.1. Implementing employment equity involves two key initiatives:

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

5.1.1.2. 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.

5.2. IMPACT ON EMPLOYMENT EQUITY

Eliminating unfair discrimination

5.2.1. Section 6 of the Employment Equity Act prohibits unfair discriminationii 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 discrimination.

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 effectivelyiii. 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 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 barriersiv 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:

5.3.1.1. consulting with its employees and representative trade unions;

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

5.3.1.3. preparing and implementing an employment equity plan; and

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

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 Plans.

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 measurement.

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 is:

5.3.6.1. unfairly discriminatory;

5.3.6.2. valid;

5.3.6.3. applied consistently to all employees; and

5.3.6.4. 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):

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

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

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

5.3.7.4. 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 exists.

5.3.7.5. 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.

Developing a workforce profile and setting numerical goals for equitable representivity

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-employee.

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 organisationv. 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 researchvi.to 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.

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 standard.

5.3.15. There is no fixed methodologyvii 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 populationviii ("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 the organisation itself to monitor its achievement of its numerical goals.

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:

5.3.19.1. the current workforce profile;

5.3.19.2. the anticipated rate of natural attrition;

5.3.19.3. 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.

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

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

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

Consultation

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 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.

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 process.

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:

5.3.32.1. Convening a consultative forum with legitimate representatives of all designated and non-designated groups from a cross-section of the occupational levels and categories in the workplace;

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

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

5.3.32.4. Displaying proposals for employment equity initiatives in visible places in the workplace with opportunity for comments;

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

5.3.32.6. Sponsoring mandatory meetings for employees to obtain updated information on employment equity progress;

5.3.32.7. Hosting small group meetings between categories of employees and officials responsible for employment equity;

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

5.3.32.9. Publishing an employment equity newsletter;

5.3.32.10. Hiring independent consultants to elicit employee viewpoints;

5.3.32.11. Facilitating employee workshops;

5.3.32.12. Collecting employee demands for the Employment Equity Plan;

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

5.4. LINK TO OTHER TOPICS

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.

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.

PART A: COMMENCING EMPLOYMENT

6. ATTRACTION

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.

6.2. IMPACT ON EMPLOYMENT EQUITY

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. POLICY AND PRACTICE

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

6.3.1.1. 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;

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

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

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

6.3.1.5. 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;

6.3.1.6. 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 events;

6.3.1.7. recruiting for talent not necessarily for a specific vacancy;

6.3.1.8. 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 candidates;

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

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

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

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

6.4. LINK TO OTHER TOPICS

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 workplace.

7. RECRUITMENT & SELECTION

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. IMPACT ON EMPLOYMENT EQUITY

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:

7.2.3.1. Advertising positions;

7.2.3.2. The job application form;

7.2.3.3. The short listing process;

7.2.3.4. Interviews;

7.2.3.5. Job offers;

7.2.3.6. Record keeping; and

7.2.3.7. Reference checking.

7.3. POLICY AND PRACTICE

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 decisions.

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

7.3.2.1. reflect the values and goals of the organisation's employment equity policy or ethos; and

7.3.2.2. 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 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 internet;

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:

7.3.11.1. 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;

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

7.3.11.3. 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 purposes.

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.

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:

7.3.13.1. 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

7.3.13.2. 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

7.3.13.3. 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 do.

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 jobx requirements as well as the inherent requirementsxi 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 minimum requirements for the job and who may have the potential to develop to meet all the job requirements within a specified time frame.

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.

Interviews

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:

7.3.25.1.1. interview skills;

7.3.25.1.2. the scoring system if this is utilised by the organisation;

7.3.25.1.3. the organisation's employment equity and affirmative action policy; and

7.3.25.1.4. 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, 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 interviewed.

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:

7.3.33.1. the demographic details of candidates who apply, those who are shortlisted, interviewed and those who are made offers;

7.3.33.2. 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 eliminated;

7.3.33.3. 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. LINK TO OTHER TOPICS

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

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. INDUCTION

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 colleagues.

8.2. IMPACT ON EMPLOYMENT EQUITY

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. POLICY AND PRACTICE

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.

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 employeesxii. 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 with.

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. PROBATION

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.

9.2. IMPACT ON EMPLOYMENT EQUITY

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. POLICY AND PRACTICE

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 employee.

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 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. MEDICAL AND PSYCHOLOGICAL ASSESSMENTSxiii

10.1. SCOPE

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. IMPACT ON EMPLOYMENT EQUITY

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 individuals.

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 fairxiv, 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 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 inadvertent discrimination does not occur in the arrangements for the administering the tests or using assessment centresxv.

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. LINK TO OTHER TOPICS

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.

PART B: DURING EMPLOYMENT

11. TERMS AND CONDITIONS OF EMPLOYMENT

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 kindsxvi; rates of pay, including overtime rates; and benefits such as motor vehicle allowances, retirement schemes and medical aid.

11.2. IMPACT ON EMPLOYMENT EQUITY

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 applyxvii.

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 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 contractxviii 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. LINK TO OTHER TOPICS

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 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. REMUNERATION

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.xix

12.2. IMPACT ON EMPLOYMENT EQUITY

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

12.3. POLICY AND PRACTICE

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 determined.

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 functions.

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:

12.3.6.1. 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.

12.3.6.2. 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 training.

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

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

12.3.8.1. collective bargaining;

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

12.3.8.3. researching and applying appropriate proportionality benchmarks; and

12.3.8.4. paying incentives and bonuses for skills development.

12.4. LINK TO OTHER TOPICS

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

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

13. JOB ANALYSIS AND JOB DESCRIPTIONS

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:

13.1.1.1. 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.

13.1.1.2. 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.

13.2. IMPACT ON EMPLOYMENT EQUITY

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. POLICY AND PRACTICE

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

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

13.3.1.2. The job description is free of jargon and is written clearly;

13.3.1.3. 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;

13.3.1.4. Arbitrary experience or formal qualifications are not included;

13.3.1.5. 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 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. LINK TO OTHER TOPICS

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 potential.

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 level.

14. JOB ASSIGNMENTS

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.

14.2. IMPACT ON EMPLOYMENT EQUITY

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.

14.3. POLICY AND PRACTICE

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. LINK TO OTHER TOPICS

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 performed.

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 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. PERFORMANCE MANAGEMENT

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,xx and the implications where it is not achieved.

15.2. IMPACT ON EMPLOYMENT EQUITY

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:

15.3.1.1. receive anti-bias and emotional intelligence training to ensure that they are able to objectively and consistently manage performance and provide honest feedback whilst being sensitive to employee differences;

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

15.3.1.3. 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:

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

15.3.2.2. 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;

15.3.2.3. 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;

15.3.2.4. 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

15.3.2.5. 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:

15.3.2.5.1. 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;

15.3.2.5.2. 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;

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

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

15.3.2.5.5. 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. LINK TO OTHER TOPICS

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 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. SKILLS DEVELOPMENT

16.1. SCOPE

16.1.1. The Skills Development Actxxi and the Skills Development Levies Actxxii 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 includes:

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

16.1.2.2. providing effective mentoring and coaching;

16.1.2.3. providing structured on-the-job training;

16.1.2.4. considering accelerated development for employees with potential;

16.1.2.5. providing meaningful job roles;

16.1.2.6. implementing individual development plans;

16.1.2.7. providing shadowing opportunities;

16.1.2.8. creating challenging work assignments; and

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

16.2. IMPACT ON EMPLOYMENT EQUITY

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.

16.3. POLICY AND PRACTICE

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 organisation.

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:

16.3.3.1. appropriately structured career breaks;

16.3.3.2. bursary schemes;

16.3.3.3. on the job learning;

16.3.3.4. mentoring and coaching;

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

16.3.3.6. 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 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.xxiii 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 representatives.

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 promotion.

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:

16.3.12.1. recognise potential, particularly from designated group employees;

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

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

16.3.12.4. identify and deal with any barriers or discrimination in allocation of training opportunities or other barriers that exist;

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. LINK TO OTHER TOPICS

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. PROMOTION AND TRANSFER

17.1. SCOPE

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

17.2. IMPACT ON EMPLOYMENT EQUITY

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. POLICY AND PRACTICE

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. LINK TO OTHER TOPICS

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.

18. CONFIDENTIALITY AND DISCLOSURE OF INFORMATION

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. IMPACT ON EMPLOYMENT EQUITY

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 consultation.

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 employees.

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 challenged.

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:

18.2.5.1. Examples of the common terms in contracts of employment issued to employees in different levels or categories;

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

18.2.5.3. Disciplinary and grievance records concerning complaints under the Act;

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

18.2.5.5. 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;

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

18.2.5.7. 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.

18.3. POLICY AND PRACTICE

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 workplace.

Confidentiality

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 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 -

18.3.5.1. 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

18.3.5.2. The information is reasonably necessary for that purpose.

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.

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. LINK TO OTHER TOPICS

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 employee.

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. CREATING EQUITY IN THE WORKING ENVIRONMENT

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. IMPACT ON EMPLOYMENT EQUITY

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

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

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 measures.

19.3. POLICY AND PRACTICE

Communication

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:

19.3.4.1. Safety signs; translations of safety notices;

19.3.4.2. Instructions through interpreters;

19.3.4.3. Instruction combined with industrial language training; and

19.3.4.4. 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 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.

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:

19.3.9.1. flexible work time,

19.3.9.2. job sharing arrangements,

19.3.9.3. child-care or access to child-care,

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

19.3.9.5. paid parental leave,

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

19.3.9.7. career breaks or time out options,

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

19.3.9.9. child-care allowances or equivalent,

19.3.9.10. telecommuting and other types of personal support services.

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 responsibilities.

19.4. LINK TO OTHER TOPICS

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

20. RETENTION

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.

20.2. IMPACT ON 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 leave.

20.3. POLICY AND PRACTICE

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.

20.4. LINK TO OTHER TOPICS

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. DISCIPLINE, GRIEVANCE AND DISPUTE RESOLUTION

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.

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. IMPACT ON EMPLOYMENT EQUITY

21.2.1. This section of the Code:

21.2.1.1. 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;

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

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

21.2.1.4. 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.

21.3. POLICY AND PRACTICE

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.

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:

21.3.3.1. 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;

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

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

21.3.3.4. 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 grievancexxiv.

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 harassment;

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.

Awareness

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.

Review

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:

21.3.14.1. designated groups have utilised the procedures;

21.3.14.2. the issues raised by employees and by the employer; and

21.3.14.3. 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.

21.4. LINK TO OTHER TOPICS

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.

PART C: ENDING EMPLOYMENT

22. EXIT INTERVIEWS

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 relationship.

22.2. IMPACT ON EMPLOYMENT EQUITY

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. POLICY AND PRACTICE

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

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

22.3.1.2. 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.

22.3.1.3. Exit interviews should be conducted by senior employees who are skilled at obtaining the required 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;

22.3.1.4. 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 environment.

22.4.2. Performance management - 30% variability in business performance is due to work climatexxv 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

23. TERMINATING EMPLOYMENT

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. IMPACT ON EMPLOYMENT EQUITY

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

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. POLICY AND PRACTICE

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:

23.3.2.1. the number and types of disciplinary actions initiated against employees from designated groups compared to non-designated groups; and

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

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

23.3.2.4. 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:

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

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

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. LINK TO OTHER TOPICS

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.

i 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.

ii Unfair discrimination can take place by means of an action or an omission.

iii 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.

iv 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.

v 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.

vi Most SETAs collect and benchmark representivity and skills data.

vii 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.

viii 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.

ix 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.

x 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 manual.

xi 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.

xii 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.

xiii 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

xivValidity 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.

xvFor 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).

xvi Leave includes annual leave, sick leave, maternity leave and family responsibility leave.

xviiThese 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 criteria.

xviiiA '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.

xix 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.

xx Workinfo.com - A Manager's Guide to Performance Management Policies and Procedures

xxi Act No 97 of 1998

xxii Act No 9 of 1999

xxiii For example, the use of women trainers for trades training traditionally associated with male only trades.

xxiv 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.

xxv Research conducted by the HayGroup

42

DRAFT HUMAN RESOURCES CODE OF GOOD PRACTICE

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