LABOUR BRIEF NO. 459
The 2023 amendments to the Employment Equity Act 55 of 1998 (EEA) aside, the Department of Employment and Labour (DEL) has in the recent past been active in the inspection of designated employers to monitor both general compliance with the EEA and to ensure that designated employers have prepared and implemented their employment equity plans (EEP)
The purpose of an EEP is for an employer to map how to it intends to make reasonable progress towards achieving employment equity in the workplace. Under the EEA a defaulting employer may face a fine up to R2,7 million or 10% of its annual turnover for non-compliance with the EEA.
The DEL, through its labour inspectors, conducts the compliance inspections. Sometimes it does so without warning. These inspections ordinarily arise as a result of inadequate affirmative action measures or a lack of accurate reporting in respect of adherence to employment equity requirements. It is therefore important to understand the various types of inspections that designated employers can be subjected to, as well as the best ways to prepare for, and respond to them, when faced by a labour inspector.
Types of employment equity inspections
These involve a general overview of whether the employer has implemented an EEP and ensuring that all reports relating to employment equity procedures are up to date. These inspections aim to look at whether the main aspects of EE compliance have been adhered to, by looking specifically at the documentation that is required.
Allegation of non-compliance
This occurs as a result of a complaint made to the DEL that an employer is alleged to not have complied with the EEA. This contravention could fall under any of the grounds of unfair discrimination or transformation in adherence with the EEA. These inspections will include the procedure followed in a general inspection as well as interviews with various individuals in order to determine if the allegations are true and whether better compliance with the EEA would have resolved the issues alleged by employees. The 2023 amendments to the Employment Equity Act 55 of 1998 (EEA) aside, the Department of Employment and Labour (DEL) has in the recent past been active in the inspection of designated employers to monitor both general compliance with the EEA and to ensure that designated employers have prepared and implemented their employment equity plans (EEP).
Inspections by the Director-General
This involves a full review of all employment equity documentation including, amongst other things, the minutes of meetings by a designated employment equity committee and employment equity policies going back as far as three years in order for the Director-General to make a determination as to whether or not the employer has complied.
General tips to prepare for a compliant employment equity inspection
• Have a robust employment equity plan in place;
• Implement adequate processes to ensure ongoing analysis and identification of issues and corrective measure in the tracking of compliance with the EEA;
• Ensure that your oganisation adheres to requirements in respect of affirmative action;
• Keep records of all documents including your EEP, minutes of employment equity meetings and employment equity policies and procedures;
• Ensure that you appoint an employment equity manager to drive the organisation’s employment Equity goals;
• Ensure that employees have visible access to the EEA and company regulations; and
• Co-operate with the relevant inspectors
Best practice in responding to an employment equity inspection
Employers must respond to any employment equity investigations in a manner that aims to promote the objects of the EEA by co-operating with labour inspectors during their inspections. This requires employer preparation.
A labour inspector has extensive power under the EEA, including the authority to issue a compliance order against a defaulting employer which, if not complied with, will end up in the Labour Court. In our experience, litigation is avoidable. When confronted with an inspection, an employer must be prepared and co-operative towards the labour inspector. Where litigation is unavoidable because the process has run past the employer, it is sensible to put in place a proper strategy to deal with the litigation as the risks with an adverse order for non-compliance are not cheap.
(Vice-Chairperson – (CEA – TESD)