May_June_2022

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MAY JUNE 2022

CCMA finds retrenchment of employee and non-payment of Severance for refusing to comply with vaccination policy fair A new code of good practice: Prevention and elimination of harassment in the workplace Wage increases and understand the exemption provisions from conditions of the main agreement, such as wages, when in financial distress

Employers must drive implementation of the Steel Master Plan, says SEIFSA

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Content The Energy Crisis is the manifestation of policy and only policy reform will solve it

Working beyond retirement age the application of section 187 (1)(f) of the LRA

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A new Code of Good Practice: Prevention and elimination of harassment in the workplace

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Wage increases and understand the exemption provisions from conditions of the Main Agreement, such as wages, when in financial distress

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20

The energy crisis is the manifestation of policy and only policy reform will solve it

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Empathy based customer service training improves customer experiences

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Plan + Performance Management = Success

Personal and professional development is a growing priority in S.A. Accredited Temporary Employment

CCMA finds retrenchment of employee and non-payment of severance for refusing to comply with vaccination policy fair

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A new Code of Good Practice: Prevention and elimination of harassment in the workplace

10 Employers must drive implementation of the Steel Master Plan, says SEIFSA

Get to know Tafadzwa Chibanguza

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33 Harassment in the workplace: Are your policies up to code?

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COVID-19: The developing case law on vaccinations

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What South Africa’s new Covid rules mean for masks at work

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Arbitration Award

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Women in STEM: A holistic approach is required to work together as equal contributors

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Publisher Steel and Engineering Industries Federation of Southern Africa (SEIFSA) Advertising sales@seifsa.co.za or (011) 298-9400 Editor: Nuraan Alli Tel: (011) 298 9436 or E-mail: nuraan@seifsa.co.za Design and layout Zandile Ngubeni Tel: (011) 298-9421 or E-mail: zandile@seifsa.co.za

ISSN - 1560 - 9049 Opinions expressed in the articles do not necessarily reflect the views of SEIFSA. Similarly, advertising in this publication does not imply endorsement or approval of any such products or services by SEIFSA. While every attempt is made to ensure the accuracy and correctness of information contained in this publication, SEIFSA accepts no liability for any losses or damages sustained through the use thereof. Articles may only be reproduced with permission.

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SEIFSA News is distributed free of charge to all companies in the metals and engineering industry.

6 issues published annually.

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The pivotal role that employers must play in ensuring the objectives of the Steel Master Plan become a reality was highlighted at the Steel and Engineering Federation of Southern Africa’s (SEIFSA’s) Mainstreaming the Steel Master Plan Conference on May 19 and 20.

EMPLOYERS MUST DRIVE IMPLEMENTATION OF THE STEEL MASTER PLAN, SAYS SEIFSA

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This is the view of SEIFSA CEO Lucio Trentini, who said that everyone who attended the conference – captains of industry, senior member of government and union leaders must stand together in wanting the Steel Master Plan to succeed, though employers have a particularly important role to play.

Furthermore, as a body representing employers in the steel

SEIFSA COO Tafadzwa Chibanguza said the discussions

industry – both upstream and downstream – SEIFSA, through

about the SMP at the conference have shown the important

its eighteen Employer Associations, is best positioned to

role industry can play in making public-private partnerships

ensure the objectives of the plan are met. Trentini said a lot

work. The SMP represents a collaborative approach with

was riding on the SMP and neither government, business

stakeholders working together in pursuit of agreed end

nor labour could expect to do it on their own.

objectives, he said.

“SEIFSA’s associated employer membership employs the

Minister of Trade, Industry and Competition Ebrahim Patel

vast majority of employees in the sector and has a long-

also emphasised the importance of partnership. He said

established track-record of successfully representing the

that building a sustainable path involved business, labour

interests of its membership. Hence, SEIFSA is ideally placed

and government all understanding that for the plan to

to champion the aspirations of the Steel Master Plan,” said

work, difficult choices and sometimes compromises would

Trentini.

need to be made. The focus needed to be on partnership and working together, rather than any party expecting their

While the conference heard about many of the SMP’s early wins since it was signed in June 2021, stakeholders expressed their impatience with the lack of implementation.

demands to be met in absolute terms.

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Ensuing that more can be done in the months ahead, Patel said his department was committed to reducing red tape in internal processes. SEIFSA has also identified this as an opportunity for collaborative efforts where the private sector can contribute to identifying areas where red tape is unnecessarily hindering progress, especially in areas that may be a blind-spot for the state.

“The Steel Master Plan Conference was a successful two-day event, with participants leaving with a renewed appreciation of the plan and, importantly, the work that needs to be done.” said Trentini.

“In championing the Metals and Engineering Sector recovery and growth, SEIFSA will avail itself to working collaboratively with all like-minded employer bodies,’’ Trentini said.

SEIFSA is working on a comprehensive report of the conference proceedings.

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Thank you to all Our key note speakers, panelists, attendees and sponsors

MAINSTREAMING THE

SMP STEEL MASTER PLAN

POWERED BY

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THE ENERGY CRISIS IS THE

The two most glaring issues that the energy

South Africa has an energy shortfall of 4,000MW,

supply industry (ESI) faces are the above-

according to the Council for Scientific and

inflation-rate increases in electricity tariffs and

Industrial Research (CSIR), and this potentially

the ever-present rounds of load-shedding due

represents a ready market for the private sector

to the severe lack of capacity. We tend to equate

to invest in to the benefit of all.

manifestation of policy and only policy reform will solve it

the energy problem with Eskom but when

When analysing South Africa’s energy crisis, it is pointless to rehash how we got to this point. We know that the state ignored the warnings that electricity was running out, that maintenance was not done, that the grid has deteriorated to the point of near collapse, that corruption was allowed to run rampant and so on and so on ad-nauseam. What is needed now is focus on what can be done to finally begin addressing the problem.

viewing it from the broader ESI perspective and

As Eskom has stated repeatedly, it simply

the roles played by the Department of Mineral

implements the policy set by the DMRE, it is the

Resources & Energy (DMRE), the National

state, and only the state, that can facilitate the

Energy Regulator of South Africa (Nersa),

inclusion and participation of the private sector.

municipalities and the Independent Power

There are essentially two solutions to the crisis,

Producers (IPPs), we see that Eskom is just one

which are not either/or options. One is what

part of a much wider ecosystem and for things

needs to be done in the immediate short term,

to get better we need more harmony between

the other what needs to be done in the longer

and among all these moving components.

term.

South Africa energy shortfall = 4,000 MW

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The immediate solution would be for the

The

Producer

He Integrated Resource Plan (IRP), which maps out

DMRE to put the 4000MW out for bid

Programme (REIPPP), which the DMRE developed

South Africa’s energy demand and the least cost

in 2011, was intended to bring additional megawatts

energy mix to meet that demand, while also charting

onto the grid through private-sector investment in

a roadmap of South Africa’s planned transition

wind, hydro and other sources of energy.

from coal to cleaner energy sources as part of the

on Bid Window 7. The department has tended to cap how much capacity can be bid for but suppliers typically bid for

Renewable

Independent

Power

international commitment to reduce greenhouse

more. In the last bid window 9,000MW

In April the DMRE called for proposals under Bid

gases and decrease carbon emissions, has been

were bid for – more than double the

Window 6, which is looking to secure another 2,600MW

criticised for being too soft on coal. But there are

shortfall - most of it coming from

of renewable energy (1,600MW of onshore wind and

indications that the government is willing to revise it.

1,000MW of solar photovoltaic) – approximately half of

Forestry, Fisheries and Environmental Affairs Minister

the 4,000MW shortfall.

Barbara Creecy told MPs in Parliament in March

renewable energy providers, however, the department only procured 2,583MW.

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that Mineral Resources and Energy Minister Gwede Mantashe “has indicated to the climate commission that he is open to receiving presentations on revisions on the IRP, which obviously could be necessary if we are to achieve the lower limit of our nationally determined

There are five main benefits to this framework: Eskom is not killed off,

downward trajectory only anticipated to intensify, a

as a disciplining

choose the type of

the penalties they

force on prices we all

energy they want

have to pay on their

so players will need to keep up to date with new technologies to stay ahead of the pack and

much faster adoption of renewable energy projects has the potential to be environmentally friendly, while also limiting tariff inflation.

win over consumers.

The longer-term solution is expediting the unbundling of Eskom to create an independent transmission

to sell to consumers. This ensures a bigger role for the

Companies can limit

The end user

products

energy,

energy prices have dropped since 2011 and with the

including from state-owned Eskom and various IPPs,

Customer can

want the cheapest

contribution (NDC)”. Given the rate at which renewable

company that will buy electricity from the market,

Competition Act

but still has a role to play.

this is especially good news for companies that can reduce their carbon footprint by using only renewable energy and in turn allow their products to capture premiums on

in certain regions for high-carbon usage.

The EU, for example, has announced a carbon adjustment mechanism, where products will carry a penalty for high carbon usage, making them more expensive and therefore less competitive.

will benefit through market-determined tariffs and betterquality service.

the international market.

private sector in the production of electricity, creating a competitive market that can make a real dent in tariff increases as well as increasing capacity, so that load-

Neither of these solutions are out of the realm of possibility and both would make big changes to the ESI, South Africa’s battle-

shedding eventually is phased out.

scarred economy, our attractiveness to foreign investors and the everyday life of all South Africans.

Eskom will play a smaller but still-relevant role – as one

But the reality is that the energy landscape is very much at the mercy of our elected politicians. It is unacceptable for South

of the providers of electricity for the country, though

Africans to endure the current electricity crisis and ongoing bouts of loadshedding. Government needs to do and be seen to be

it will need to improve its efficiency significantly to

doing everything in its power to ensure that this crisis, like state capture, becomes a thing of the past.

remain relevant and competitive.

LET US TAKE CARE OF YOUR

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Contact our expert

ECONOMIC AND COMMERCIAL NEEDS

Palesa Molise Economist palesa@seifsa.co.za

TRAINING

CONSULTANCY

PUBLICATIONS

Training and consulancy

Publications

We can consult and train on any of the matters

The EC Division publishes annual/quar-

of Economic and Commercial below:

terly State of the Metals and Engineer-

•

Theory and Calculation of Contract Price

ing Sector Reports and monthly Price

Adjustment;

Movements Reports. Flagship product

•

Research

of PIPS ( Price and Index Pages )

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Insight & analysis

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International trade analysis

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Economic impact assessments

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Commercial contracts

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Statistical analysis

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Trends evaluation

Economic and Commercial Services

Eleen Snyman Economic and Commercial Officer eleen@seifsa.co.za

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EMPATHY BASED CUSTOMER SERVICE TRAINING IMPROVES CUSTOMER EXPERIENCES

Every company knows the importance of Customer Service and its impact on the bottom line in business. Along with training their workforce on products and services, organisations have started to realise the potential of using empathy-based approaches to teaching people the importance of care, trust and authenticity when it comes to serving customers.

In customer service, empathy

to service as a whole. Addressing customer problems,

is the ability to have a human

pain points and issues must be a priority even before

experience and interaction with

the customer engages in the product or service.

a customer where you would

Through the past 2 years, humans have been starved

intentionally put yourself in the

of contact, comfort and engagement and now place

customer’s shoes to understand

a significant amount of value on a human experience

their issue and find the best possible

when it comes to customer service.

solution for your customers. The trick is to also not become emotional yourself

Customer Service Training Program

and to understand the bigger picture to try to find

Several programs are developed for educating

mutual ground to begin engagement.

employees whenever a new product or service is launched. These programs provide the required

The goal of every organisation is to add value to their

skills, abilities, and information to the employees and

customers- to meet their needs irrespective of what

stakeholders so that they can deliver the product

the business is about. Each person in the organisation

or service with ease to its maximum capacity. By

needs to understand their role in respect to the end-

providing the right kind of training, companies can

customer and the difference they make as individuals

retain new and existing customers.

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A company’s service operations must ensure that processes,

levels that are being experienced and work together

to think of a personal experience where the person on

skills, and practices are attuned to every touch point.

to close out any gaps that they identify in the process.

the other end of the line said that they didn’t know,

Although companies know a lot about customers buying

An effective and efficient customer training program

was not sure or just blamed another person internally.

habits, incomes and other characteristics used to classify

can help companies where churn rates are significantly

Consistency is key!

them, they know little about the thoughts, emotions,

high. Successful upselling and retaining of customers

and states of mind that the customers interactions with

can happen by investing time in your customer journey

On the Customer Service Training Program, employees

products, services and brands induce.

mapping and moments of truth.

are given an opportunity to share their experiences with

3. Reduced support costs, by including customer

5. Better Product Development.

non-delivery or when customers were upset. This can

This means that investing in the right customer service

education in service.

then be used to develop better products and services.

training program offers a direct, positive experience to the

Teaching employees the importance of direct after-sales

When the feedback is implemented properly and

customer.

service, engagement and customer education, means

customers can connect with your product and services,

that you set up your business for success by ensuring

they will recommend, rate, and review your products.

your customers have a great customer experience from

Customer reviews and recommendations help your

the get go all the way to after the sale has been made.

business grow rapidly.

Some of the benefits of the Customer Service Training Program include:

When customer education forms part of customer 1. Increased engagement with customers.

service, the business ensures that call backs and queries

Customer Service Training Programs help you develop a

By providing the right tools, you can train employees

reduce with a direct correlation to a positive increase in

community of loyal customers. Customer service is key to

on how to engage customers on the right things, in the

customer experience.

ensuring your revenue grows as markets open up.

right way. Direct engagement with customers allows

4. Consistent customer experience.

representatives to be helpful and create trust with the

Every employee is special and wants to feel important

brand and creates an excellent customer experience.

and that they belong. Ensuring that all your employees

[Insert full name] (HRSS) is a SEIFSA Alliance Partner. We are passionate about and champion Customer Service

attend and receive the same training when it comes

Training Programs.

By identifying a customer journey and then engaging

to customer service means that you get a consistent

For more information contact Melissa Subban

on each of the customer touchpoints, employees then

customer experience across the value chain. This helps

have a shared understanding of the expected service

customers confidence in the company. You only have

2. Increased customer retention.

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Plan

+

=

Performance Management

Success

There is an overworked business adage that states that ‘failing to plan is like planning to fail’, or some variation thereof. It bears repeating; simple though it may be, it remains eminently true.

The weakness (and strength) of these

and threats. It factors in the hurdles

Goal attainment requires concerted

types of truisms is that they represent

posed by poor performance and other

effort; a well-executed Performance

a conclusion to a problem, rather

constraints,

Management

like having the answer to a complex

in plans to overcome these hurdles.

offers THE comprehensive tool for

equation

preceding

Planning must consider the fertility of

success.

workings, or even an understanding

the ground – is organisational culture

of how and why it works – we’re often

conducive to, and reflective of, high

[Insert full name] (HRSS) is a SEIFSA

comforted by a little gem, but unlike

performance?

Alliance Partner. We are passionate

and

not

the

and

promptly

factors

diamonds, a business truth cannot comfort merely by looking at it; we have

Process

and

System

about and champion Performance

An effective Performance Management System entails:

Management. We design, facilitate,

Planning is a great tool in business,

1. Planning:

capacitating and leveraging teams

when done well it is an objective

Robust

statement of intent. It says, ‘we have 10

Functional

machines, and this is how widgets we

alignment > Cascading from broad

shall make from it’. It says, ‘this is how

to specific > individual efforts in

For more information contact Derrick

many salespeople we have; they must

service of planned outcomes.

Thalaivirsan, hrss@dravida.co.za or

to understand it; we must know why it works and how it works.

each sell 1000 widgets per month’.

Strategic to

Objectives

Individual

>

goals

Planning employs all resources, most

SMART > Team Output Agreements >

importantly

Individual Performance Agreements

resources,

in

service of profitability and growth imperatives.

A

holistic

of goal attainment.

approach

recognises the market size, competitive advantage, opportunities, weaknesses,

> PM Regimen.

3. Culture antecedents: Poll > Agree > Implement > Poll.

HRSS offers a

1- or 2-day intervention aimed at and individuals in service of strategy attainment.

2. I m p l e m e n t i n g / M o n i t o r i n g / Correction:

human

implement, and support the process

Also visit

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Personal and professional development is a growing priority in S.A. Training and development is the process in which one improves on skills, concepts, changing of attitudes and to gain knowledge. This basically consists of three main branches namely: Training, Education, and Development.

Training involves improving one’s own ability to perform certain tasks. These can include practical and theoretical knowledge, but the two aren’t mutually exclusive. Furthermore, training brings two things to mind, specifically in performance and productivity, in which training aims to improve both of these.

Where training focusses on the ability of a person to perform certain tasks, education encompasses everything to do with reaching one’s own potential, in terms of future development and what you want to achieve in the future, as well as the development of the individual.

Development then, focusses on the individual on a broader scope. Development is concerned with the improvement of an individual on all levels, not just in their workplace or their personal lives. “Maslow’s hierarchy of needs” come to mind here, which includes physiological needs, safety needs, love and belonging needs, esteem needs, and self-actualization needs.

Personal and professional development is a growing priority within South Africa. Many people need to improve on their skills and education, leaning on other people within the industry, who have certain expertise, but most of the time these people lack any experience in education and training. That is where ODETDP comes in.

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What is ODETDP?

The benefits of studying this qualification can include:

With the ODETDP qualification one can build skills and get knowledge on how to facilitate learning (and build learning

ODETP is short for Occupationally Directed Education

•

Training Development Practices.

It is certified in the field of corporate training, skills

•

development, assessment and curriculum design, and is

Improving productivity in the work place by upskilling

programmes), how to assess that learning and how to

your employees.

moderate the whole learning experience.

Learning-rich environment to develop technical and soft skills.

Academy Training Group is an Alliance Partner to SEIFSA.

aimed at people who want to implement the best practice in the work environment.

This can include specific

To find out more about our offerings please visit https:// •

Professional career development.

•

Personal

academytraining.co.za/

techniques that need to be followed, or certain knowledge that need to be ascertained to be more effective or efficient.

Furthermore, ODETDP is not aimed at any specific field of study, and can be applied to further enhance the education and training of any field. A generic qualification, if you like.

development

through

motivation and self-confidence.

job

satisfaction,

LET US TAKE CARE OF YOUR

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Publications

HUMAN CAPITAL AND SKILLS DEVELOPMENT NEEDS

Visit our website for a range of Human Capital and Skills Development publications.

Contact our expert

TRAINING

CONSULTANCY

PUBLICATIONS

Zizile Lushaba Human Capital & Skills Development Executive zizile@seifsa.co.za

Training and consulancy We can consult and train on any of the matters of Human Capital and Skills Development below: •

Skills Development Facilitator (SDF), Facilitator, Supervisory, Assessor, Moderator;

•

Skills development Committee Training;

•

How to earn maximum B-BBEE points through skills development;

•

Workplace Skills Plan (WSP);

•

Employment Equity Committee training and submission training;

•

Change Management;

•

Diversity and Social inclusion;

•

Performance Management;

•

Talent Management & Succession planning training;

•

Self-motivated teams;

•

HR Audit.

Human Capital and Skills Development Consultancy

The HC & SD Division has a network of Alliance Partners with a national footprint. To view these Alliance Partners and their product offerings.

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Q+ A

SEIFSA’s Chief Operating Officer Getting to know SEIFSA COO, Tafadzwa Chibanguza

Full Name:

Tafadzwa Chibanguza – my friends and colleagues call me Taffie Position and Company Name: COO of the Steel and Engineering Industries Federation of Southern Africa (SEIFSA) Main Activity of the Company: SEIFSA is an advocacy, lobby and collective bargaining employer federation of 18 member associations representing 1 200 companies that employ in excess of 150 000 employees in the metals and engineering sector Date and Place of Birth: May 1989, Harare, Zimbabwe Education: BCom (Economics and Econometrics), University of Johannesburg; BCom (Hons) in Economic Policy, University of the Witwatersrand (Wits); MCom (Economic Policy), Wits; and I am scheduled to complete an MSc in Mining Engineering at Wits in 2022

“

The race is not to the swift, or the battle to the strong, nor does food come to the wise or wealth to the brilliant; time and chance happen to them all

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Q+ A

Number of People under Your Leadership:

Businessperson Who Has Impressed You Most: MTN Group

As COO, I work closely with and in support of the CEO.

president and CEO Ralph Mupita

The organisation employs 21 employees across three main business units, namely Industrial Relations Services; Human

Philosophy of Life:

Capital and Skills Development Services; and Economic

“

and Commercial Services. These, together with Marketing, Sales, Communications and Finance, make up SEIFA’s staff complement

First Job:

Management Style:

I started a car wash company which employed three people,

Collaborative – encouraging all opinions results in refined

including me, in 2003, but my first formal job, after high school

decisions

and before university, was in insurance sales

Personal Best Achievement:

Size of First Pay Packet:

Becoming a father

R2 500 a month

Person Who Has Had the Biggest Influence on Your Life:

Career Path To Date:

My wife

The race is not to the swift, or the battle to the strong, nor does food come to the wise or wealth to the brilliant; time and chance happen to them all

After university, I started within the FirstRand Group at FNB Private Clients and then moved to Rand Merchant Bank (as a

Person Who Has Had the

technical investment analyst). In 2013, I joined Seifsa as a junior

Biggest Influence on Your

Biggest Ever Opportunity:

economist and rose to senior economist, before moving to

Career: Henk Langenhoven,

Thus far, the opportunity to make a meaningful and

Minerals Council South Africa, where I worked as an economist

a former boss, mentor and

lasting contribution to SEIFSA’s story in my capacity as the

until my return to Seifsa in 2022

friend

organisation’s COO

Value of Assets under Your Control: SEIFSA is registered with the Department of Employment and Labour as a federation of employer associations and, by virtue of its registration certificate, is deemed to operate on a not-forgain basis

Biggest Ever Disappointment: Person You Would Most Like to Meet: Former US President Barack Obama

Missing cum laude on my first master’s degree programme by a mere 2%

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Hope For the Future:

Favourite Food/

Pets:

That there is greater collaboration between the private and

Drink:

None yet, but as my young daughter gets older, I suspect a

public sectors across all spheres (economic, social, security

Ribs and Rock Shandy

request is loading

Favourite Music:

Miscellaneous Dislikes:

Anything by Bob Marley

People who do not fully invest themselves in the task at hand –

and education, besides others) so that there are sustainable outcomes for the country Favourite Reading:

be it a small or major task – in both their family and professional

Biographies and books on economic history. My favourite book

Favourite Sport:

of all time is Why Nations Fail: The Origins of Power, Prosperity

Formular 1 and watching marathons

lives Married: To Rebone Chibanguza

and Poverty, by Daron Acemoglu and James Robinson Hobbies: Favourite TV Programme:

I enjoy running – 5 km to 6 km every weekday morning and a

Children:

Big Bang Theory and The Office

half marathon on weekends when time permits

I have a daughter, Nashe Chibanguza

Car: Audi

Clubs: Christian Men’s Ministry – a nondenominational platform for professionals and businesspeople that trains leaders for the marketplace, family life and faith

23

PIPS

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PRICE AND INDEX PAGES

Unleash the Power of more than 250 Indices pips.seifsa.co.za

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• • • • • • • • • •

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• • • • • • • • • • • •

Primeserv Denverdraft (Pty) Ltd Primeserv Staff Dynamix (Pty) Ltd PTS Metalwork (Pty) Ltd Qunu Staffing (Pty) Ltd Quyn International Outsourcing (Pty) Ltd Scribante Labour Consultants (Pty) Ltd Sindawonye Services Southey Personnel Services STAFFATACLICK (PTY) LTD Themba Njalo Camden Tributum Emawi (Pty) Ltd Vusithemba Mpumalanga

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SOUTH AFRICA: CCMA FINDS RETRENCHMENT OF EMPLOYEE AND NON-PAYMENT OF SEVERANCE FOR REFUSING TO COMPLY WITH VACCINATION POLICY FAIR In a recent arbitration award in the matter between Cecelia

policy given the nature of its business operations. In

Bessick and Baroque Medical Pty (Ltd), the CCMA found that

terms of the policy, vaccination in the workplace was

the employer’s decision to retrench the applicant, due to her

an operational requirement and the policy was a health

refusal to comply with the employer’s mandatory vaccination

and safety resolution.

policy, was substantively and procedurally fair.

The applicant refused to comply with the policy on medical, Further, the CCMA found that the applicant’s decision to

personal, and religious grounds. The applicant further

refuse to adhere to the employer’s mandatory vaccination

declined to be vaccinated based on her constitutional right

policy was unreasonable and therefore she was not entitled

to bodily integrity. The employer recorded that despite

to severance pay.

providing reasons for her unwillingness to vaccinate, the

Background

applicant did not provide sufficient support to substantiate the reasons provided for her unwillingness to vaccinate.

The employer supplies medical devices to various third parties

The employer considered alternatives to retrenchment which

in the healthcare industry and is classified as an essential

included allowing employees to object and not be vaccinated,

service. On 22 July 2021, the employer advised its staff that

repeated COVID-19 testing, and allowing employees to work

it would be imposing a compulsory COVID-19 vaccination

from home. These alternatives were found to be impractical.

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Pursuant to a consultation process

The Commissioner then had regard

employees contracting COVID-19

in terms of section 189 of the Labour

to

operational

and to ensure the protection of

Relations Act of 1996 (LRA), the applicant

requirements as defined in section 189

third parties interacting with the

was handed a notice of termination.

of the LRA, which he noted is defined as

respondent’s employees; and

the

meaning

of

requirements based on the economic,

-

the employer had embarked on

The employer argued that considering

technological, structural or similar needs

the appropriate risk assessment

the position of the applicant, her duties

of an employer. He then considered the

of its position and duly justified

were such that she had frequent

issue of ‘similar needs of an employer’

why it was necessary to impose a

contact with colleagues who engaged

and stated that the employer must be

mandatory vaccination policy as a

with third parties in the healthcare

able to establish that the dominant

justifiable operational requirement.

industry. Further, as an essential service

purpose of the retrenchment is the

provider, the company’s employees had

economic viability of the employer’s

It was further held that the evidence

high exposure to the virus given the

business.

of the applicant was insufficient to

nature of the work performed and the

establish a basis for her objection

open-plan office set-up. Therefore, the risk of transmission was high.

The CCMA’s findings

The Commissioner found that the

to vaccination and it was accepted

employer had established a case and a

that whatever alternative position

clear business rationale for retrenching

the employer could have considered

the applicant for the following reasons:

the

applicant

for,

ultimately

the

requirement that all staff members The Commissioner found that the risk

-

the employer had provided a clear

had to vaccinate remained.

rationale for the imposition of a

as well as the mandatory vaccination

mandatory vaccination policy given

Finally,

policy, although not challenged by

the nature of the work the employer

applicant was entitled to severance

the applicant, met the requirements

engages in;

pay, it was held that the applicant’s

the imposition of a mandatory

election to refuse vaccination was

on Occupational Health and Safety

vaccination policy was necessary

unreasonable

Measures in Certain Workplaces.

to ensure that the operations of

Therefore, it would be grossly unfair

the employer were not severely

for the employer to pay severance pay

affected by absences as a result of

in the circumstances.

set out in the Consolidated Direction

-

and

whether

without

Whether a mandatory vaccination policy

can

be

regarded

as

an

operational requirement will depend on the unique nature of each business.

Employers will be required to show objectively that the implementation of a mandatory vaccination policy has a bearing on the economic viability of the business.

Employers are encouraged to seek legal advice before taking any action against employees for their refusal to comply with mandatory vaccination policies.

This newsflash was prepared by

assessment conducted by the company

regarding

Concluding remarks

the

merit.

Sibusiso Dube and Nikita Solanki.

If you have any questions, please contact any partner within our South African Employment and Benefits Practice.

SEIFSA Contents RATE Page CARD

27

SEIFSA News • SEIFSA News is in its 37th year of circulation and has evolved from a print publication, to being an online magazine circulated on all of SEIFSA’s digital platforms.

• This includes the SEIFSA website, Facebook, LinkedIn and Twitter. The publication is also available on SEIFSA’s digital showroom hosted by Engineering News.

• SEIFSA’s social media presence is continually growing both organically within the Metals and Engineering Sector as well as in related industries across the globe.

• SEIFSA News has an established reputation as the most authoritative voice in the industry. The publication focuses on the latest information on labour related matters and employment law, key trends in the skills development arena as well as a detailed economic reports and analysis highlighting trends in the sector.

• In addition, the magazine has an updated list of accredited temporary employment service providers (TES) who are affiliated to SEIFSA, registered with the bargaining council and metal industries benefit funds and who are recognised as reputable TES providers • SEIFSA News is published bi-monthly every year and is circulated to both members and non-members in the Metals and Engineering Sector.

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Contents Page

28

WORKING BEYOND RETIREMENT AGE

THE APPLICATION OF SECTION 187 (1)(F) OF THE LRA Section 187(1) of the LRA provides that

“Agreed” retirement age is the age that

The two are mutually exclusive with normal

must be based on age; b) the employer

a dismissal is automatically unfair if the

the parties mutually agree upon, either in

retirement age only applying in instances

must have a normal or agreed retirement

employer, in dismissing the employee

their employment contracts or in terms

where no agreed age is identifiable.

age for persons employed in the capacity

unfairly discriminated against an employee,

of a subsequent agreement, as being

directly or indirectly on the grounds of age.

the termination date of the employment

In Schweitzer v Waco Distributors (A

employee must have reached the age

relationship. “Normal” retirement date is

division of Voltex (Pty) Ltd (1998) 19 ILJ

referred to in (b).

Notwithstanding this protection section

the date identified as the usual retirement

1573 (LC); [1998] 10 BLLR 1050 (LC); [1998]

187(1)(f) provides that “a dismissal based on

age stipulated in a pension or provident

JOL 3064 (LC); (1998) 7 LC 6.12.3 the court

In such circumstances an employer is free

age is fair if the employee has reached the

scheme, or in the absence thereof the

summed up the conditions that must exist

to dismiss such an employee without any

normal retirement or agreed retirement

usual retirement age for employees in that

in order for a dismissal to be fair in terms of

further considerations of fairness.

age for persons employed in that capacity.”

sector.

s 187(2)(b) as being that a) the dismissal

of the employee concerned; and c) the

Contents Page

29

new retirement age. In many instances

relevant and applicable to the applicant

such employees have argued that in the

employees’ own retirement or pension

circumstances their employer had waived

fund.” Further SITA’s Conditions of Service

their rights to rely upon section 187(1)(f).

provide that a member who transfers from another company-approved pension fund

In the recent decision of Solidarity obo

or approved provident fund shall retain his

Gerhardus Viljoen Strydom & 5 others v SITA

previous retirement age of 65, in terms of

(LC 9 May 2022) the Labour Court considered

the rules of such approved pension fund

such an argument when determining

or approved provident fund. Furthermore,

whether five employees employed by SITA

subject to the consent of the SITA, a

had been automatically unfairly dismissed

member who has reached his normal

on the basis of age discrimination. In this

retirement age of 60 or 65, whichever is

matter, while the individual circumstances

applicable, may remain in service and retire

of the employees differed, the common

at age 67.

factor was that all five employees had been The LAC in Karan t/a Karan Beef Feedlot v

the employer would enjoy the protection of

Randall (Karan Beef) (2012) 33 ILJ 2579

section 187(2)(b), should he/she terminate

(LAC); [2012] 11 BLLR 1093 (LAC); (2012) 21 LAC

the employment of the employee, once the

1.11.52 noted that “where there is a normal or

new agreed date is reached.”

has reached that age, the employer shall

Notwithstanding this provision, uncertainty

enjoy protection prescribed in section

regarding

187(2)(b) from that date and at any time

187(1)(f) has arisen in instances where

thereafter.” It added that “when there is an

employers have allowed employees, that

agreement reached between the employer

have attained normal or agreed retirement

and the employee before the latter has

age, to continue in their employment

reached the normal or agreed retirement

without expressly amending the terms

age, to determine a new retirement age,

of the agreement or agreeing upon a

application

agreed/normal retirement age of 60, as specified in the employees’ Pension Fund Rules and contracts of employment.

The employees’ contracts of employment

agreed retirement age and the employee the

allowed to continue working past their

of

section

defined the “termination date” as being “the retirement age specifications set according to the rules of the relevant pension or retirement funds or any other earlier date as envisaged in terms of this Agreement.” Similarly, in terms of the SITA Employment Conditions employees’ retirement age is “regulated by the rules

“

subject to the consent of the SITA, a member who has reached his normal retirement age of 60 or 65, whichever is applicable, may remain in service and retire at age 67.

Contents Page

30

The employees argued that, by allowing

written communication from the employer,

them to work beyond retirement age, the

issued after the applicant employees

employer had tacitly agreed to the new

had reached the normal retirement age,

retirement age, being 67 years; alternatively,

confirming the decision of the Board of

that they had a reasonable expectation to

Directors to approve their annual salary

work up until they reached 67 years of age.

increases. On the other hand the employer argued that the duration of the contracts

The Court noted that the determination

of employment could not be lawfully

of the matter ultimately centred on the

extended beyond their termination dates

meaning of the term “consent”, specifically

in the absence of a written amendment to

whether it should be in writing or verbal;

their contracts of employment.

and whether it should be given before or the answer was to be found in the Special

The court concluded on these issues that:

Rules of the Pension Fund which states

“In my view, there is no merit in SITA’s

that a member must retire from service

contention that the applicant employees’

on reaching normal retirement date unless

contracts of employment automatically

his employer “agrees in writing” to his

terminated when they reached the normal

remaining in service after that date.

retirement age of 60 years. Clearly, they

after the age of 60. The Court noted that

continued to render services in terms The employees argued that this agreement

of their contracts of employment and

“in writing” could be imputed from the

continued to contribute to the Pension

“

The employer, unless it can be proven that the employer specifically waived its rights to apply the retirement age, would remain entitled to at any point after the employee had attained the normal or agreed retirement age place the employee on retirement.”

Fund before they were forced to retire. Yet, the applicants’ argument that the salary adjustment

letters

constitute

written

consent as contemplated in clause 5.2.2 of the Special Rules is a bit of a stretch as its contents are unambiguous… SITA is correct in its contention that any amendment to terms and conditions of employment of the applicant employees had to be in writing as required by clause 24.2 of their contracts of employment. The salary adjustment letters are a typical example of how to comply with this requirement. Yet, it is clear ex facie the letters that the scope of their application was limited to the amendment of the applicant’s salaries and nothing more.” [para 24 - 25] The Court noted that the consequence of allowing employees to work beyond agreed or normal retirement age was well articulated by the court in Bank v

Contents Page

31

Finkelstein t/a Finkelstein (JS219/15) [2016] ZALCJHB 428 that

retirement age, then the employer is entitled to enforce

to continue to work after their normal or previously agreed

“where an employee works beyond an agreed or normal

the normal retirement age “any time thereafter”. Thus the

retirement age. In circumstances that there is agreement

retirement age the harsh reality is that such an employee is

normal retirement age of 60 years remained uninterrupted

reached on a later retirement date, or the contract is novated

in effect working on ‘borrowed time’. The employer, unless

and binding and SITA could avail itself of the protection

before such time or the actions of the employer provide clear

it can be proven that the employer specifically waived its

prescribed in section 187(2)(b) from the date the applicant

evidence of a waiver of the right to unilaterally terminate the

rights to apply the retirement age, would remain entitled to

employees reached the normal retirement age and at any

employment contract at a later stage, section 187(1)(f) will

at any point after the employee had attained the normal or

time thereafter.

not be of application and the ordinary protections against

agreed retirement age place the employee on retirement.”

unfair dismissal would apply.

This is not to say that section 187(1)(f) indiscriminately comes

The court also cited, with approval, Marais v Aveng Grinaker (JS602/14) [2019] ZALCJHB 259 in which Moshoana J had observed that “[c]learly, once the day of reckoning arrives – reaching the normal or agreed retirement age – the clock cannot be reversed. The only way to reverse it is to novate.

In the nature of novation, the obligation must still be extant at the time of replacement. In my view, once the horse bolts – the retirement age is reached – the retirement age is not capable of being novated.”

The court in Solidarity v SITA, having regard to the various judicial authorities, concluded that there was no merit in the employees’ argument that SITA’s failure to engage the applicant employees with a view to reach an agreement on a new retirement age (post age 60 years) amounted to a unilateral determination of a new retirement date; or that in the circumstances SITA tacitly agreed to allow the applicant employees to remain in employment until the age of 67 years. It concluded that, if there is no agreement on the retirement date once the employee reaches the normal

to the assistance of every employer that allows employees

Tamara Cohen/ LexisNexis

Contents Page

32

Reading Country Club

TAFFIE VIDEO HERE

Contents Page

33

A new Code of Good Practice:

Prevention and elimination of harassment in the workplace

The Minister of Labour (or more currently of Employment and Labour) has over the years issued various Codes of Good Practice in terms of the relevant enabling labour legislation1. The most recent is titled “Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace” (Harassment Code), issued in terms of s54(1)(b) of the Employment Equity Act 55 of 1998 (EEA) and published under Government Notice 46056 in the Government Gazette of 18 March 2022.

As its name suggests, and as provided in s2, the

indirectly, against an employee, in any employment

purpose of the EEA is to achieve equity in the

policy or practice, on one or more grounds,

workplace, including through the elimination of

including race, gender, sex, pregnancy, marital

unfair discrimination. Harassment is recognized as

status, family responsibility, ethnic or social origin,

a form of unfair discrimination2 and is prohibited

colour, sexual orientation, age, disability, religion,

on any one, or a combination of grounds listed in

HIV status, conscience, belief, political opinion,

section 6(1) of the Act, which provides that:

culture, language, birth or on any other arbitrary

No person may unfairly discriminate, directly or

ground.

Contents Page

34

“

In terms of s5 of the Act, all employers are enjoined to take steps to eliminate unfair discrimination in any employment policy or practice but until now, guidelines in the form of a code of good practice has exclusively addressed sexual harassment, and as the authors note in Harassment in the Workplace

In terms of s5 of the Act, all employers are enjoined to take steps

As set out in the Introduction, the intention of the Harassment Code

to eliminate unfair discrimination in any employment policy or

is to address the prevention, elimination and management of all

practice but until now, guidelines in the form of a code of good

forms of harassment that pervade the workplace, guided amongst

practice has exclusively addressed sexual harassment, and as the

others by the ILO Convention 190, which obliges ratifying countries

authors note in Harassment in the Workplace: law, policies and

to adopt an inclusive, integrated and gender-responsive approach

processes3, “sexual harassment was central to the development

to the prevention and elimination of violence and harassment in

of harassment law.” On 17 July 1998 the Minister issued a Code of

the world of work. In its draft form put out for public comment

Good Practice on the Handling of Sexual Harassment Cases under

in August 2020, the title of the Harassment Code was “Draft Code

s203(1) of the Labour Relations Act 66 of 1995 (LRA), which has the

of Good Practice on the Prevention and Elimination of Violence

distinction of being the first in the series of codes of good practice

and Harassment in the World of Work”. The final version dropped

issued in terms of labour legislation. In 2005, the Minister issued

“violence” from the title, but acknowledges it in its content.

the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (the Amended Code), this time

The Harassment Code (henceforth “Code”) recognizes that

in terms of s54(1)(b) of the EEA, which had come into effect on 1

harassment in the workplace can take different forms, including

December 1999. Strangely, the original 1998 code was not repealed

violence;

until December 2018, until which time any person interpreting or

harassment; bullying; and racial, ethnic or social origin harassment.

applying the LRA had to take both codes into account. Happily,

It may also consist of physical abuse (either threatened or actual)

the Harassment Code avoids any such confusion by expressly

as well as psychological, emotional and sexual abuse. The Code

repealing the Amended Code, meaning that from this point on,

explicitly notes that all forms of harassment against women, men

sexual harassment is dealt with in terms of the Harassment Code

and LGBTQIA+4 and vulnerable persons in the workplace is an

only.

abuse of power and that harassment particularly affects workers

sexual

harassment;

gender-based

in the most vulnerable work situations.

violence

and

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35

Harassment is defined generally as unwanted

the

conduct that impairs dignity; creates a hostile or

being

intimidating work environment for one or more

impact

employees, or is calculated to, or has the effect

conduct

of inducing submission by actual or threatened

employee. Employers

adverse consequences; and is related to one or more

are warned that certain

of the grounds listed in section 6(1) of the EEA (see

acts of harassment may involve a criminal offence that

above). The Code explains that the term “unwanted” is

must be reported to the police.

inquiry the of on

the the

used rather than “unwelcome” as it is consistent with the language of PEPUDA5, but that the two terms

The Code notes that harassment may consist of a single

are synonymous. The Code further acknowledges

instance or it may manifest as a pattern of persistent

that the intersection of factors such as race, religion,

conduct; bullying in particular may be an escalating

gender, or disability increases the risk of harassment.

process. The point is further made that the intention

Helpfully, the Code lists examples of conduct that

or state of mind of the harasser is not important,

would constitute harassment, and unpacks terms

except that if the conduct was calculated to offend the

such as bullying, vertical and horizontal harassment,

complainant this would be an aggravating factor.

passive-aggressive or covert harassment, mobbing and online harassment.

So much for the general substantive provisions.

The Code then specifically addresses sexual

General guidance is also given on how to evaluate whether conduct is (or was) unwanted, with the primary focus of

harassment and racial, ethnic or social origin harassment.

Contents Page

3636

Sexual Harassment As in the Amended Code, sexual harassment (including same-sex harassment) is prohibited on the grounds of sex, gender or sexual orientation. The Code provides a general definition of sexual harassment as unwelcome conduct of a sexual nature, whether direct or indirect, that the perpetrator knows or ought to know is not welcome and that may be offensive to the complainant, make the complainant feel uncomfortable or cause harm, or inspire the reasonable belief that the complainant may be harmed, and may also interfere with the work of the complainant.

The unwanted conduct could be physical, verbal or non-verbal and expressed either directly or indirectly. Various examples of the type of conduct that would amount to sexual harassment are listed, fleshing out those referred to in the Amended Code, for example by the addition of kissing, following , watching, pursuing, accosting, or sending by electronic means or otherwise of sexually explicit text, pictures or objects. The Code further acknowledges that sexual harassment may include victimization, quid pro quo harassment, sexual favouritism and creating or permitting a hostile working environment, with suitable examples provided.

The important question of how to establish that conduct is unwanted is addressed. The Code notes that there are different ways that an employee may indicate this, including non-verbal conduct such as walking away or not responding to the harasser. The employee may also seek the assistance and intervention of a colleague, family member or friend. As in the Amended Code, the point is further made that the fact that the complainant does not indicate that the conduct is unwanted does not mean that there has not been sexual harassment, if the harasser ought to have known that

the

conduct

could

be

regarded as unwanted.

Assessing whether there has been sexual harassment includes assessing whether the conduct has impaired an employee’s dignity, taking into account the employee’s circumstances and the respective positions of the employee and the perpetrator in the workplace.

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37

Racial, Ethnic or Social Origin Harassment Section 6 of the EEA lists “race” and “ethnic or social origin” as separate grounds on which unfair discrimination is prohibited.

However, the Code refers primarily to racial harassment, which is defined as a form of unfair discrimination related to a person’s membership or presumed membership of a group “identified by one or more of the listed prohibited grounds or a characteristic associated with such group.” This definition is somewhat unclear.

As with sexual harassment, racial harassment is constituted by unwanted conduct, either persistent or consisting of a single incident. The conduct must be harmful, demeaning, humiliating or create a hostile or intimidating environment. More specifically, the Code provides a long list of different forms of racial harassment, including direct or indirect behaviour involving racist physical, verbal and non-verbal conduct, remarks, abusive language, racist name-calling, open hostility to persons of a specific racial or ethnic group, offensive written or visual material, negative stereotyping, subtle or blatant exclusion from workplace interaction and activities

The Code provides that racial harassment must be assessed

To determine whether language is racial and derogatory, the test

and other forms of marginalization, gestures and racist cartoons,

objectively, with reference to the reaction of a normal or reasonable

is whether the language used is reasonably capable of conveying

and jokes, memes or innuendos which undermine the recipient’s

person, in keeping with the underlying constitutional order. In

a racist meaning to the reasonable hearer, taking into account the

dignity or which create an intimidating, hostile or humiliating

relation to conduct, the test is whether on a balance of probabilities

impact of the legacy of racial discrimination on the present. An

working environment for the recipient. Any kind of racist conduct

the conduct complained of was related to race, ethnic or social

important indicator would be whether a perpetrator would have

is assumed to be offensive and unwanted, negatively impacting

origin, or a characteristic associated, or assumed to be associated

spoken the words or behaved in the manner complained of to

the dignity of someone exposed to the language or conduct.

with such group. A relevant factor would be how the perpetrator

someone not of the complainant’s racial group or ethnic or social

treats other persons not of the complainant’s racial group.

origin.

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38

Application of the Code In comparison to the Amended Code, the application of the Harassment Code is broadened to include job seekers as well as job applicants, persons in training such as interns, apprentices and persons on learnerships, volunteers, and customers as well as clients.

Employees are protected in any situation in which they are working or which is related to their work. Examples are listed, with the proviso that this is not a closed list. As a sign of the times, in the case of employees who work virtually from their homes, or any place other than the employer’s premises, the location where they are working constitutes the workplace.

of the section, but coupled with the obligations set out in s5 of the

with the harassment. The Code gives explicit guidance on the

EEA, it is clear that employers should take steps to eliminate unfair

steps and information to include in the latter formal and informal

discrimination (read harassment) in any employment policy or

procedures. At the same time, should it appear to the employer

practice. Certain guidelines are set out for employers to implement,

that an informal procedure will not adequately deal with the risk

including that policies and procedures should provide a clear

to other persons in the workplace, an employer must follow a

statement of the employer’s position regarding the prevention,

formal procedure, irrespective of the wishes of the complainant.

elimination and management of harassment in the workplace.

Employers and trade unions are advised to implement awareness-

The Code emphasizes the importance of protecting the

training initiatives to educate employees about harassment and

confidentiality of all parties where instances of harassment are

employers must adopt a harassment policy which should take

concerned, particularly in disciplinary hearings involving sexual

cognisance of and substantially comply with the Code. Several

harassment. The Code also recommends that employers grant

statements are provided for employers to include in the policy,

additional paid sick leave where the employee on medical advice

which should be communicated effectively to all employees. The

requires trauma counselling and notes that if harassment results

harassment policy should also specify the range of disciplinary

in an employee being ill for longer than two weeks, the employee

sanctions that may be imposed on a perpetrator, proportionate to

may be entitled to claim illness benefits from the UIF.

the seriousness of the harassment.

The Code is a wordy 31 pages long, and this commentary seeks

Aside from the substantive aspects, the Code regulates procedural matters. Reference is made to an employer’s obligation in terms of s60 of the EEA, which according to the Code involves taking proactive as well as remedial steps to prevent all forms of harassment in the workplace. This is not strictly a correct reading

Employers are advised to develop clear procedures to deal with

only to give an overview and must therefore not be relied on as a

harassment so as to enable problems to be resolved in a gender-

comprehensive guide.

sensitive, confidential, efficient and effective manner. In particular, when an employee has reported an alleged incident, the employer must investigate the allegation and advise the complainant that they may choose either an informal or formal procedure to deal

Anne Erwin

LET US TAKE CARE OF YOUR

Contents Page

39

Contact our Experts

INDUSTRIAL RELATIONS AND LABOUR LAW NEEDS

Louwresse Specht Industrial Relations Executive louwresse@seifsa.co.za

Michael Lavender Industrial Relations Manager

TRAINING

CONSULTANCY

Training and consulancy We consult and train on any of the matters below: • • • • • • • • • • • • •

Main Agreement; Grading; Chairing disciplinary enquiries; Shopfloor; Arbitration; Basic Conditions of Employment Act / employment contracts; Sick Leave and Absenteesm; Equal Pay for Equal Value Provisions; Labour Law matters; Dispute resolution; Conciliation; Labour Court; Retrenchments.

PUBLICATIONS

michaell@seifsa.co.za

Publications Visit our website for a range of Industrial and Labour Law publications

Industrial Relations Services

Vuyiswa Miya Industrial Relations Manager vuyiswa@seifsa.co.za

Contents Page

40

WAGE INCREASES AND UNDERSTAND THE EXEMPTION PROVISIONS FROM CONDITIONS OF THE MAIN AGREEMENT, such as wages, when in financial distress Wage increases due 1 July 2022 The Main Agreement contains the following direct benefits to the membership: - The employer negotiating team managed to secure a three-year wage deal. This guarantees industrial relations peace, certainty, and stability for all member companies from now until 30 June 2024.

- The wage increases, calculated on the scheduled rates and awarded as a rand and cents amount for 1 July 2022 are clear and unambiguous – they are not dependent on further negotiations, and strike action on the increases is not possible.

Member companies now know precisely what their employment costs will be for the coming 2022 and 2023, and have an opportunity to manage these appropriately.

-

Notwithstanding considerable pressure brought to bear by the unions SEIFSA succeeded in securing a key principle that wage increases must be calculated on the scheduled (minimum) rates as contained in the Main Agreement and awarded to employees as a ‘rand and cents amount’.

Contents Page

41

Wage increases implementation

and

date

of

The agreed wage increases (ranging from 5% at Rate A to 6% at Rates F, G, and H), is effective from 1 July 2022.

Please note: The ‘rand and cents increases’ to employees are based on the rand and cent amount calculated on the scheduled rate per category (i.e. Rate A, B, C, etc.) of employment, regardless of how much more an employee may be earning above the minimum scheduled rate of pay.

By way of example:

SEIFSA is aware that the current economic environment may pose severe constraints on certain member companies. Companies may consider a number of options in an attempt to manage these difficult circumstances, one of these is applying for an exemption in order to reduce labour costs. The other options include, retrenchments, lay-offs and short-time, and SEIFSA is very well equipped to assist companies in these areas..

For the purposes of this article let’s give consideration to exemptions.

Members of Associations affiliated to SEIFSA are able to submit an application for exemption to their Local Regional Bargaining

The General Wage Increase at

Rate H = (R49.55 in 2021) was 6% = (R2.97). Therefore, irrespective of what a Rate H employee earns, he would receive the ‘rands and cents’ increase of R2.97, and not a 6% increase on what he actually earned when the increase was due.

Council (the “Council”), against any conditions of the Main Agreement, including wages and the leave enhancement pay or bonus.

When applying for an exemption, there are clear exemption guidelines that must be followed and forms that must be completed. These can be found in the Main Agreement Handbook or may also be obtained from SEIFSA.

To ensure that these rates are applied correctly, your employees will need to be correctly graded. Please contact SEIFSA’s Industrial Relations Division if you need any assistance in this regard.

Exemption from the Main Agreement’s wages – addressing financial distress

Importantly, the exemption process requires

a consultation

process with your employees, but does not require the employees’ agreement in order to be granted the exemption.

“Importantly,

the exemption process requires a consultation process with your employees, but does not require the employees’ agreement in order to be granted the exemption.

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42

Management’s attention is drawn to the importance of the

•

The signatures of employees accepting that they have been

Bookkeeper nor the Human Resources Manager’s signatures

Council’s requirement that an application must be accompanied

informed of the implications of what the firm is proposing to

will be acceptable.

by the following important information and documents in order

the Council.

for the application to be considered:

• •

•

Where the employees are trade union members, the company

A fully detailed motivation explaining the difficulties that

should inform the local trade union office of the intention to

the company is experiencing and hence the need for the

apply for an exemption and request a meeting (in writing) with

application.

the local official to discuss the impact of the exemption on the company and the members of the union.

•

The latest Audited Financial Statements, and in the case of a closed corporation - a full set of Financial Statements which

•

Where employees have elected a trade union representative

are to be signed by an Accounting Officer and Management

or representatives (shop stewards), these persons should be

Accounts for the last three months. If the Financial Statements

requested to sign that they were consulted and that they

are older than six months, then the Management Accounts for

understand the need for applying for the exemption. Where

the recent three months are required.

the local trade union official and/or shop stewards have been consulted and where they reject the application, such refusal

•

•

Formal confirmation that employees were informed of the

must be recorded in the application and countersigned by at

company’s decision to make an application for exemption.

least two witnesses.

Where employees reject the company’s approach, they are to be

•

Where the local trade union official and/or shop stewards and

informed of their right to submit written reasons for objecting

affected employees support the exemption application, this

to the exemption application and such reasons should be

signed agreement should be included with the application.

attached as an annexure to the company’s application.

•

It is recommended that all meetings in this regard between management, employees, shop stewards and union officials be

•

The signature of at least two employees who accept being the

minuted and that the minutes of such meetings be submitted

representatives for the workforce and who will be affected by

with the exemption application.

the application. Representatives of the workforce are to sign the form, contained in the exemption application questionnaire, consenting to this.

•

The application itself is to be signed by either a Director of the firm, Member, Owner or a Senior Accountant - neither a

The savings in cost to company should the application for exemption be granted and the workings in arriving at this cost.

Contents Page

43 It is important to note that the Council is obliged to consider all applications for

•

exemption, irrespective of the basis on which they are founded. This effectively means that financial reasons are not the only criteria which must be considered. Employers

Expansion opportunities (including capital investments) where cheaper labour costs could influence investment decisions; and/ or

•

may apply for an exemption on any one or more of the following reasons (but not

New ventures/ operations which justify retention or creation of job opportunities at reduced wage costs.

limited to): • •

Increased competitive threats;

One nevertheless anticipates that application for exemption will primarily be founded on the grounds

Inability of employer to pass on cost increases to final customers;

of affordability, job retention and/or job creation.

• Technological changes threatening business survival; •

Inherently high difference between wage rates actually paid and current affordability of market competitive considerations facing an

SEIFSA affiliated member companies who have any queries or who may need any help in these areas, must not hesitate to contact SEIFSA for more assistance in these areas.

employer; •

Market decline, projections, etc.; •

Important SEIFSA training:

Loss or potential loss of business; •

Existing/ current unprofitable contracts the consequences of which are only likely to manifest themselves

1.

in future/ current

Understanding and Implementing the Main Agreement for 2022 – 2023 including the new wage increases and the wage exemption process.

(unreported) accounting periods;

2.

Webinar

Face to face

14 June 2022 24 June 2022

13 September 2022

The Job Grading and Wages of the Main Agreement – Are you paying wages according to the right grades?

Webinar 27 June 2022

Contents Page

44

HARASSMENT IN THE WORKPLACE: Are your policies up to code?

The provisions of this new Code are broader The new Code gives effect to South Africa’s recent ratification of the International Labour Organisation Convention 190 and

than the old Code with far-reaching effects.

Most notably the new Code: -

and includes gender-based violence and

provides a framework and accompanying

harassment, bullying, and racial, ethnic

guidelines for employers and employees to attain a workplace free of harassment

The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace became effective on 18 March 2022, replacing entirely the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace.

and violence.

or social origin harassment; -

of

sexual

harassment

and

Any policies that: fail to address persons

-

the

more

expansive test for sexual harassment.

particularly,

where

employees

are

acknowledges victims of harassment, part of the LGBTQIA+ community as well as other vulnerable persons who have

various forms of harassment that can

regarding

workplace,

include women, men, persons who are

subjected to it; fail to grapple with the

workplace; and which lack the necessary

the

workplace;

who perpetrate harassment or those

occur in the workplace and outside of the

outside

or any place other than their physical

employers currently have in place as well as how these policies are implemented.

harassment

working virtually from their homes

harassment policies that South African

information

accounts for new ways of working as it identifies the need to address

These developments will require a total overhaul

addresses more than sexual harassment

poor access to labour rights; -

extends the perpetrators and victims of harassment to persons who are volunteers,

persons

in

training,

Contents Page

45

customers and clients and other persons who have dealings

be assessed on a case-by-case basis and what may constitute

with the business, which could extend beyond the employer-

harassment for the complainant in question, may not constitute

Employers need to cultivate a workplace culture that focuses

employee relationship; and

harassment for another person. Therefore, employers should err

on educating all employees on the seriousness of harassment

on the side of caution when applying this component of the test.

in the workplace and training persons in the human resources department on how to appropriately deal with complainants in

clarifies the test for sexual harassment specifically. The old Code merely indicated the factors which need to be taken into

The new Code also alludes to the creation of an approach to

cases of harassment striving toward a safe and respectful work

account when assessing whether sexual harassment has taken

dealing with harassment cases that is not rigid and is more

environment, free of discrimination for all employees.

place, however, the new Code goes further to indicate the type

holistic. Such an approach requires the employer to consider the

of assessment that needs to be made, providing that sexual

implementation of: better education and information regarding

harassment “is unwelcome conduct of a sexual nature, whether

harassment, particularly sexual harassment; training as to how to

direct or indirect, that the perpetrator knows or ought to know

properly deal with and counsel complainants of sexual harassment;

is not welcome”. It envisions that there ought to be subjective

an inquiry into the sexual harassment that is inquisitorial rather

and objective components to the test for sexual harassment –

than adversarial; and a workplace environment that is aware of

an approach consistent with that adopted by the Courts. The

harassment and its effects and that does not enable perpetrators

subjective assessment is whether the sexual harassment “may

to harass, but rather enables complainants to speak up without

be offensive to the complainant, make the complainant feel

fear of reprisal.

uncomfortable or cause harm or inspire the reasonable belief that the complainant may be harmed”. The objective assessment,

Given the prevalence of all forms of harassment in the workplace,

in relation to all harassment including sexual harassment, is an

employers must ensure that they take active steps to prevent and

evaluation as to whether a reasonable person in the circumstances

eliminate harassment in the workplace lest they become liable

of the complainant would have held similar views regarding

for damages in terms of vicarious liability. This risk of such liability

the harassment complained of. The latter test requires a careful

is greatly increased under the new Code particularly for those

assessment, during the investigation phase into the complaint

employers who neglect to update their policies and practices in

of sexual harassment, as every case of sexual harassment should

this regard.

Pamela Stein, Partner, Joani van Vuuren, Senior Associate & Jamie Jacobs, Associate from Webber Wentzel

46

Contents Page

Contents Page

47

COVID-19: THE DEVELOPING CASE LAW ON VACCINATIONS

A high-level summary of some of the

only to return to work once he had

most noteworthy cases that have come

been vaccinated against COVID-19;

before the Commission for Conciliation,

alternatively,

Mediation and Arbitration (CCMA), the

weekly COVID-19 test result. The CCMA

Labour Court (LC) and the High Court

dismissed Mr Kok’s claim and found

(HC) in South Africa over the past few

his suspension fair. In his reasoning,

months follows below.

the Commissioner found, inter alia,

could

submit

a

that the employer had complied with 21 January 2022, Theresa Mulderij

the requirements of the Consolidated

v Goldrush Group (CCMA) – Unfair

Direction on Occupational Health

dismissal

and

claim: Theresa Mulderij

Safety

Measures

in

Certain

(Ms M) was dismissed for incapacity

Workplaces (OHS Direction); and that

after Goldrush declined her COVID-19

the requirement to vaccinate is a

vaccine

reasonably practical step that every

The

Many lawyers, employers and employees have been waiting in anticipation for precedent on workplace vaccinations to be developed.

he

exemption

CCMA

found

application. the

dismissal

employer is required and compelled

substantively fair, reasoning that Ms M

to take in terms of the Occupational

was permanently incapacitated on the

Health and Safety Act, 1993. [See our

basis of her decision not to vaccinate.

full summary newsflash here.]

Ms M was required to engage with

2

external clients and internal colleagues

Members & 2 Others v SEESA (Pty) Ltd

by virtue of her position and could not

(LC) – Urgent application: Solidarity

be accommodated elsewhere in the

approached the Labour Court on

business.

an urgent basis on behalf of two of

February

2022,

Solidarity

obo

its members for an order declaring While the issue is far from settled, there have been a number of interesting cases decided in the last four months that provide some insight into how our courts and tribunals are approaching employers’ vaccination requirements.

25 January 2022, Gideon J Kok v Ndaka

SEESA’s

Security and Services (CCMA) – Unfair

Premises Policy and any other related

labour practice claim: Gideon Kok (Mr

policies unlawful. Solidarity’s urgent

Kok) was suspended after he refused

application was struck off the roll for

to be vaccinated. He was instructed

lack of urgency.

COVID-19

Admission

to

Contents Page

48

11 February 2022, Free State for Choice (FS4C) v University of

fair, but procedurally unfair, due to the employer’s failure to

afford the employee the same opportunity as its employees

the Free State (UFS) (HC) – Urgent application: FS4C applied

follow a proper pre-dismissal procedure. The CCMA found the

not on probation to comply with the requirement. There was

for urgent interim relief to suspend the operation of the UFS’s

employer’s vaccine requirement to be sound, considering, inter

no complaint about the employee’s work performance or

COVID-19 Regulations and Required Vaccination Policy, pending

alia, that the employer, Mr Korabie, suffers from comorbidities.

suitability, yet her employment was terminated by relying on

a review application in which it sought to review and set aside

the probation period having come to an end. By the time the

the policy. The urgent application was struck off the roll for lack

14 March 2022, Solidarity obo Members & 1 Other v Ernest Lowe,

arbitration took place, the employer’s vaccination policy was

of urgency. The review application was withdrawn.

A Division of Hudago Trading (Pty) Ltd (LC) – Urgent application:

not yet in force. Dismissal was accordingly premature.

Solidarity sought an order declaring the employer’s admission 23 February 2022, De Klerk v Chairman of the Board of Curro

policy (which permitted employees to enter the premises

There are sure to be many more cases making their way through

Holdings Ltd and Another (HC) – Urgent application: the

either if they were fully vaccinated or could produce a negative

our courts and tribunals in the time to come. Employers would do

employee, a grade 1 teacher at Curro Academy Sandown in

COVID-19 test) unlawful and in breach of the second applicant’s

well to keep up to date with these decisions as the law in this area

Cape Town applied for an urgent interdict to bar Curro from

employment contract. The application was dismissed. In

is developed.

applying its COVID-19 vaccination policy, pending a review

reaching its decision, the Court emphasised that the admission

application in which she sought to have the policy declared

policy did not amount to a ‘mandatory vaccination policy’ and

This newsflash was prepared by Talita Laubscher, Chloë Loubser

invalid, unlawful and unconstitutional. The High Court struck

that the matter did not relate to the fairness or reasonableness

and Mbali Mnyandu and is the third in a series on the subject of

the urgent application from the roll for lack of urgency.

of the admission policy or the second applicant’s Constitutional

vaccinations. If you have any questions, please contact a member

rights. The applicants failed to point to any specific term of the

of our South African Employment and Benefits Practice.

1 March 2022, Makhanda Against Mandates (MAM) v Rhodes

contract that was breached because of the adoption of the

University (HC) – Urgent application: MAM sought an interim

admission policy.

interdict against the implementation of the vaccine mandate at

___________________________________________________________________ Bowmans is a leading African law firm with offices in Kenya,

Rhodes University. The matter was struck off the roll for lack of

5 April 2022, Zaphia September v Inyosi Empowerment (CCMA)

Mauritius, South Africa, Tanzania, Uganda and Zambia, Alliance

urgency.

– Unfair dismissal: Zaphia September was dismissed for failing

firms in Ethiopia and Nigeria, special relationships with leading

to vaccinate during her probation period, on the basis that

firms in Malawi and Mozambique, and a non-exclusive co-operation

7 March 2022, Dale Dreyden v Duncan Korabie Attorneys

vaccination had become a new competency and the employee

agreement with French international law firm Gide Loyret

(CCMA) – Unfair dismissal claim: Dale Dreyden was dismissed

was thus not competent for the position. The CCMA found

___________________________________________________________________

for refusing to be vaccinated in line with the employer’s

the dismissal unfair. Whilst the employer had complied with

vaccination requirement, which was imposed based on its

the requirements of the OHS Direction and the employer’s

risk assessment. The dismissal was found to be substantively

right to implement the policy was not disputed, it did not

49

Contents Page

Contents Page

50

The answer to this is not entirely clear, say legal experts at law firm Bowmans.

The transitional period provided for under the DMA Regulations was intended to afford the government an opportunity to finalise the much anticipated and highly contentious regulations under the National Health Act. These regulations have not yet been finalised and, on 4 May 2022, the Minister of Health extended the period for public comment on the health regulations by a further three months, thus until 4 August 2022.

“However, to ensure that there is no gap in the legal frame-

What South Africa’s new Covid rules mean for masks at work Thursday (5 May) marked the end of the transitional period under the Disaster Management Act Regulations. The question on many employers’ and employees’ minds today is: can they now do away with mask-wearing in the workplace?

work when it comes to containing the spread of Covid-19, limited regulations under the National Health Act were published last night. These interim NHA regulations are largely similar to the transitional DMA Regulations that applied during the last month,” Bowmans said.

In particular, the interim NHA regulations provide: •

For the wearing of face masks when entering and being inside an indoor public place or when using public transport;

•

For capacity limitations and number restrictions on gatherings; and

•

For the regulation of international travellers entering South Africa.

Contents Page

51

“The interim NHA regulations allow the minister of

“Private employers conducting their businesses from an

still be a reasonably practicable control measure that

health to assess the suitability of the above measures on

indoor public place would, however, be obliged to re-

employers elect to continue to enforce, Bowmans said.

an ongoing basis and to determine at any time that the

quire face masks.”

measures are no longer necessary to contain the spread of Covid-19.

“In such a case, and upon notice in the government gazette, the measures will no longer apply. The minister may also reinstate such measures, if deemed necessary, by way of notice.

“Employers will recall that the DMA regulations specifically obliged them to require their employees to wear face masks when entering the employment premises and while performing their duties,” Bowmans said.

“Interestingly, the interim NHA regulations do not contain a similar provision. It may be arguable, therefore, that

“

Private employers conducting their businesses from an indoor public place would, however, be obliged to require face masks.”

This is to ensure that they comply with their ongoing obligation to provide and maintain a safe working environment.

“In terms of the Occupational Health and Safety Act, read with the Hazardous Biological Agents Regulations, employers must implement reasonably practicable measures to control the risk of exposure to the relevant hazardous biological agents in the workplace. The HBA regulations now expressly list the SARS-COV-2 virus as a hazardous biological agent.

“Under the HBA Regulations, employers are required to conduct and update a risk assessment pertaining to hazardous biological agents to identify, amongst other things, what reasonably practicable control measures

private employers who conduct their businesses from private premises are not required to enforce mask-wear-

Employees should not be too hasty in tossing their masks

can be taken. Where appropriate, these measures should

ing in the workplace, on the basis that such workplaces

Even if it may be argued that the mask-wearing provi-

include face or eye protection or other suitable protective

do not constitute ‘an indoor public place’.

sions do not apply to all workplaces, mask-wearing may

equipment or clothing.”

Contents Page

52

The Code of Practice: Managing Exposure to SARSCOV-2 in the workplace similarly requires a risk assessment and plan, Bowmans said.

“This code expressly enables employers to impose measures to limit the spread of the virus through social distancing, the wearing of facecloth masks, barriers, hand washing, sanitisers and surface disinfectants. Employers would accordingly be entitled (and in some cases, obliged) to continue the requirement for face masks and other health and safety measures in the workplace.

“With the number of Covid-19 cases in the country on the rise again and the threat of the fifth wave looming, employers are encouraged to assess the risks and their health and safety protocols carefully.

They should also clearly communicate the particular measures that would apply in their workplaces to their employees and third parties entering the workplace.”

Mandatory mask-wearing may continue While the current legal position on mask-wearing at the workplace may not be entirely clear, the legal position may be clarified once the full regulations under the National Health Act are promulgated, Bowmans said.

“In draft form, these regulations require an employer to provide employees with cloth face masks or shields to cover their noses and mouths, which implies that masks must be worn in the workplace.

“In the meantime, employers are advised not to throw caution to the wind and to think carefully before lifting mask requirements.”

Commentary by Talita Laubscher (partner) and Chloë Loubser (knowledge and learning lawyer) at Bowmans South Africa.

Contents Page

53

Arbitration Award NUMSA OBO Members referred a dispute to the Metal and Engineering Industries Bargaining Council against Defy Appliances,

concerning the application and

interpretations of the Main Collective Agreement. Their claim is based on clause 7 of the Main Agreement which allows payment of leave enhancement ( bonus) pay in respect of the number of shifts lost during short time.

Contents Page

54

Women in

S T E M SCIENCE According

to

TECHNOLOGY the

United

Nations

Educational, Scientific and Cultural

A holistic approach is required to work together as equal contributors

By Zizile Lushaba Human Capital and Skills DevelopmentExecutive Steel and Engineering Industries Federation of Southern Africa

ENGINEERING

MATH

Revolution (4IR) there are enough seats at the table for everyone.

Organization (UNESCO), South Africa is ranked number one in Sub-Saharan

The issue of whether opportunities exist

Africa as having the highest portion of

for women in STEM in South Africa is

female STEM (Science, Technology,

an easy yes. Nevertheless, there are

Engineering,

still a number of obstacles women in

Mathematics)

STEM in South Africa need to navigate

graduates.

The

through - both in the classroom and

narrative

has

the world of work. Being a woman with

are

close to 10 years’ experience working in

the days where STEM

a predominately male dominated steel

equals men. In the

manufacturing industry, I can vouch

21st Century and with

that women do indeed face many

the Fourth Industrial

obstacles.

changed,

gone

Contents Page

55

of information, lack of expertise transfer, having to go the

Population Fund (UNFPA) South Africa is also another

extra mile to prove one’s self as a woman in STEM etc.

promoter of gender equality. In addition, there is also the Commission for Gender Equality and the publication of the

It is generally universally accepted that there is only so

Code of Good Practice on the Prevention and Elimination

much a textbook can teach a person. Dr Bernard Fanaroff,

of Harassment in the Workplace which came into effect

Special Advisor to the Minister of Trade Industry and

from March 2022.

Competition, argued the same point at the Steel Master

A recent report by the African Academy of Sciences (AAS) found that the leading elements which attract and influence women to pursue STEM related careers is that they believe these careers fit their capabilities. This confirms that women who pursue STEM careers believe in their capabilities to manage STEM related courses and careers. This is further corroborated by the slow yet steady

Plan (SMP) Conference that took place on the 19 and 20

Nevertheless,

of May 2022. Dr Fanaroff stressed the difference between

initiatives, the question remains - why is there still gross

skills and expertise, arguing that expertise can only be

underrepresentation of women in STEM in South Africa?

gained through not only doing the work but also through mentoring and coaching. This is a key problem South Africa needs to focus on across all industries, more so where STEM and woman in STEM careers is concerned, as STEM is critical for South Africa’s economic prosperity.

Credit however needs to be given to strategies and

increase in women pursuing careers in STEM.

legislation that have been enacted and are aimed at

There are numerous factors which cause and contribute to

where inequality is one of the themes, the National

these obstacles. The patriarchal perception of STEM related careers, sexual harassment, lack of female representation and role models, limited mentors in the workplace, gender discrimination and inequality in the labour market, hogging

eradicate inequality, such as the Decent Work Agenda Development Plan in its advocacy for the inclusion of women at all representative levels and the Employment Equity Act which is geared towards promoting equality in the workplace to name a few. The United Nations

“

and

notwithstanding

these

worthy

notwithstanding these worthy initiatives, the question remains why is there still gross underrepresentation of women in STEM in South Africa?

Contents Page

56

school careers. Access to bursaries and opportunities to be In the President of the Republic of South Africa’s own

I believe more role models of women in STEM are needed to

admission in one of the State of the Nations Addresses,

assist, not only for inspiration purposes, but for mentoring,

South Africa still remains a highly unequal society where

coaching, expertise transfer as well as support.

mentored also needs to be significantly expanded.

There should be more emphasis on encouraging and supporting initiatives such as Take a Girl Child to Work and

poverty and prosperity are still defined by elements such as gender. This notwithstanding, South Africa has been

Support needs to start in the class room and carried over into

Women in Mining which has greatly assisted in increasing

successful in putting some measures in place, however, in

the world of work. The barrier of accessibility of information

women in the mining sector.

the absence of implementation, monitoring, individuals

regarding STEM careers needs to be addressed and more

championing of same and the right support - we are a long

specifically for girls in rural areas. We also need to see more

South Africa is in need of a targeted and strategic skill

way-off from believing the struggle for woman and woman

initiatives to assist the girl-child in both rural and urban

strategy for the success of our economy. This requires a

in STEMS has been won.

areas and a far greater involvement with girls early in their

holistic approach, that is for all, irrespective of gender, to

Contents Page

57

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