We, in South Africa, have the privilege of enjoying a Constitutional democracy, something that we weren’t privy to before our first democratic elections in 1994. At the heart of this Constitution is section 9 of the Bill of Rights which prohibits inequality being metered out to any person in the Republic of South Africa. The EEA was enacted to give effect to this Constitutional directive.
All employers must comply with Chapter II
If you are an employer – and it doesn’t matter if you are a designated or non-designated employer: see below for an explanation of what a designated employer is – you need to comply with Chapter II of the EEA. In a nutshell, what this says is that you are prohibited from discriminating against an employee of yours based on, for example, their race, gender, marital status, etc. You, as an employer, are also not allowed to test your employees medically unless legislation allows this or it this action is called for considering the circumstances that you find yourself in.
Only designated employers must comply with Chapter III of the EEA
What is a designated employer?
PwC defines what a designated employer is:
- A person who employs 50 employees or more;
- A person who employs fewer than 50 employees but who has a total annual turnover equal to or above the turnover stipulated in Schedule 4 of the EEA;
- Municipalities;
- An organ of State as defined in sec 239 of the Constitution excluding the South African National Defence Force (SANDF), National Intelligence and the SA Secret Services; or
- An employer bound by a collective agreement that appoints it as a designated employer.
What does ‘complying with Chapter III of the EEA’ mean?
If you are designated employer, you need to ensure that you have suitably qualified employees from designated groups in your company. If you don’t do this you risk having the Department of Labour issuing you a compliance order and – even worse – facing an action in the Labour Court.
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