Despite the fact that BBBEE Codes of Practice have been a key focus areas of organisations for some time, there remain barriers and interpretation areas that can and should be addressed more expediently and innovatively. This is particularly important in highly volatile environment. Our BBBEE Bootcamp will demystify, capacitate and enable you to make confident decisions in respect of BBBEE strategy and implementation, in areas such as those set out hereunder – Ownership: Achieving the required level of black ownership can be challenging, particularly for smaller businesses or those operating in capital-intensive industries. Access to financing and identifying suitable black investors or partners can pose difficulties. Skills Development: Businesses may struggle to allocate sufficient resources and implement effective skills development programs. Identifying appropriate training providers, ensuring the relevance of training programs, and tracking the impact of these initiatives can present challenges. Enterprise and Supplier Development: Identifying and developing viable black-owned suppliers can be a hurdle for businesses. Establishing mutually beneficial relationships with black-owned enterprises, ensuring their capacity and quality meet the organization’s needs, and tracking their progress can be complex. Socio-Economic Development: Determining impactful socioeconomic development initiatives aligned with the organization’s goals and the needs of the target communities can be challenging. Measuring the effectiveness and long-term sustainability of these initiatives can also pose difficulties. Employment Equity (EE): Achieving equitable representation at all occupational levels can be a struggle for businesses. Addressing historical disparities, implementing fair recruitment and promotion practices, and fostering a culture of inclusivity can be complex and require sustained effort. Compliance Monitoring and Reporting: Maintaining accurate records, tracking progress, and preparing the necessary documentation for B-BBEE verification can be time-consuming and resource-intensive. Businesses may face challenges in ensuring ongoing compliance and meeting reporting deadlines.

In the case of Coldset (Pty) Ltd v Singh DA 1 2021 2022 ZALACD 8 2 June 2022, an employee exited the premises by driving down a one-way lane. To avoid colliding with an oncoming vehicle, he drove his vehicle backward. A fellow colleague’s son told the employee it was a “no-entry zone”. In response, the employee drove his vehicle at an aggressive speed toward him and swore. At a disciplinary hearing, the employee admitted guilt. The employee had 33 years of clean service. The Chairperson factored in that the employee was coming off a night shift, was tired, and may have been in shock. The employee expressed his intention to reconcile with his fellow employee. The Chairperson found that a final written warning was appropriate on condition that he issued a personal apology to the colleague and son. During the meeting, where he was expected to tender his apology, the employee refused. The employee indicated he would be challenging the outcome. The employee was charged with further misconduct for his subsequent actions. At the second hearing, the employer contended that the employee’s conduct breached the trust relationship. The Chairperson found that the employee had contravened the employer’s standard of trust and that, given his supervisory role, he was aware of the conduct required of him and the importance of upholding the image of the employer. Dissatisfied with his dismissal, the employee referred an unfair dismissal dispute to the CCMA. The Arbitrator found that the employee was the “author of his own fate”. The dismissal was, therefore, found to have been substantively fair. The employee sought a review of the arbitration award by the Labour Court (LC). The LC found there was no evidence that the other parties were dissatisfied with the employer or that the situation impacted negatively on the employer. The failure to render an apology did not bring the employer into disrepute. The sanction imposed was found to be “unnecessarily harsh”. The employer approached the Labour Appeal Court (LAC). The LAC found that the LC had treated the review application, which came before it, as an appeal and not a review. The LC failed to have regard to if the decision of the Arbitrator was one to which a reasonable Arbitrator could not reach. The LAC found that the employee had conducted himself in a patently unacceptable, unwarranted, threatening, abusive, and intimidatory manner towards a woman and her son within the confines of the employer’s premises without any justification. Far from taking heed of the final written warning, the employee chose not to comply with the terms and engaged in misconduct similar to that previously committed. For these reasons, the appeal must succeed. This is where I believe that amendments need to be made to the Labour Law system. An employee acting in this way should be dismissed regardless of his or her years of service. Actually, years of service could be aggravating.

In 2017, the Minister of Finance issued detailed Preferential Procurement Regulations in terms of the Preferential Procurement Policy Framework Act (Number 5 of 2000). Among others, these procurement regulations laid down the criteria for the adjudication of tenders. Criteria included price, the Broad-Based Black Economic Empowerment status of the entity completing the tender, and matters such as local production and sub-contracting. Other details included the criteria for breaking deadlocks in scoring, the award of tenders not scoring the highest points, and cancellations. In February this year, the Constitutional Court found that these regulations were inconsistent with the Preferential Policy Framework Act and ordered the Ministry of Finance to develop new practices within one year. On 4th November 2022 the Minister of Finance, Minister Godongwana, promulgated the Preferential Procurement Regulations, 2022 in Gazette 47452. This Gazette has stripped away most of the requirements from the previous regulations. The new regulations require the tender documents to state the applicable preference point system to be applied, any specific goals that are relevant to the tender must be specified in the invitation to tender, the points which points are to be awarded for achieving these goals, the calculation of the points to be awarded and evidence that will be required in support of these points. The preference point systems are: 80/20 for the acquisition of goods or services with an of R50 million or less and for tenders for income-generating contracts with an award value of equal to or less than R50 million 90/10 for the acquisition of goods or services with a value above R50 million round and for tenders for income-generating contracts with award value of more than R50 million. Under the 2017 regulations, taking the 80/20 preference point system as an example, 80 points were used when measuring items such as the efficacy of the product supplied, the price, any local content, and other requirements specified in the tender documents. The remaining 20 points were allocated based on the tenderer’s BEE status. Under the 2022 regulations, the 20 points are no longer based upon the tenderer's BEE status but are awarded based on goals specified for the tender. In terms of the regulations these specific goals “… means special specific goals as contemplated in section 2 (1) (d) of the Act which may include contacting with persons, or categories of persons, historically disadvantaged by unfair discrimination on the basis of race, gender, and disability including the implementation of programmes of the Reconstruction and Development Programme as published in Gazette 16085 dated 23 November 1994.” The 2017 regulations gave tables showing how the points were to be allocated to the tenderer based on their BEE status. Because of the Constitutional Court finding, these tables are no longer in the regulations. Instead, the Invitation to tender must state how the points are going to be allocated. Section 30 (1) (b) of the regulations requires the organ of state to indicate the specific goals that will be applied in the adjudication of the tender, the number of points that will be awarded to each goal, and proof of the claim for such goal. Tender documents will need to be very detailed. Irrespective of which preference point system is applied, the contract must be awarded to the tender scoring the highest points. When there is a deadlock in scoring, this will be resolved initially by reference to scores achieved for the specific goals with the tenderer receiving the highest points winning the contract. If the tenderers score the same points for everything, it will be awarded by the drawing of lots. A large number of the requirements laid out in the Preferential Procurement Regulations, 2017 have been removed in the Preferential Procurement Regulations, 2022. The Preferential Procurement Act is also being amended and from a review of the draft bill, it appears the Preferential Procurement Act will become the vehicle to drive and protect procurement. Some Brief Comments On This Draft Bill National Treasury and the Public Procurement Office, which will be housed in the Treasury, will be given teeth in terms of corruption and loss of public funds. The Public Procurement office has wide-ranging powers. In fact it appears almost like a law enforcement agency. The question that arises is how will it be staffed and whether it will have a watchdog to prevent abuse? Offenses (section 61) range from fines to imprisonment for up to 10 years in terms of this bill but other Acts are brought in such as the Prevention and Combating of Corrupt Activities Act. These are welcomed. There are a large number of things that “must” be done. The implementation and policing of such matters are not necessarily dealt with in the Regulations. Examples where steps “must” be taken are S27 (Rejection of Bids), S29 (Awards Deviating from Committee Recommendations), S32 (conclusion of Contracts), and S12 (disclosure of interest by officials). The Minister must publish regulations in terms of S64 and this section gives details of the matters these regulations must deal with. Two examples of S64 requirements not included in the Procurement Regulations are security vetting for procurement officials in the supply chain and at the Public Procurement office as well as procedures and fees for lodging objections.

Retrenchment Policy Retrenchment Policy- For a dismissal ( be it for misconduct, incapacity or operational reasons ) to be fair, it has to be substantively as well as procedurally fair. In other words, there has to be a fair reason for the dismissal (substantive fairness) and how the dismissal takes place needs to be fair as well (in other words, it needs to be procedurally fair). Large-scale vs Small-scale Retrenchments Labour law for retrenchments states that there is a distinction drawn between large-scale and small-scale retrenchments. However, before the distinction between these two is drawn one needs to look at what a small employer is versus a big employer: A small employer employers 50 or less employees. A big employer employs more than 50 employees. A big employer can undergo a large-scale or a small-scale retrenchment. A large-scale retrenchment at a big employer is a dismissal of a specified minimum number of employees in relation to the size of the employer. If the employer retrenches: 10 employees, and they employ between 50 and 200, this is a large-scale retrenchment 20 employees, and they employ between 200 and 300, this is a large-scale retrenchment 30 employees, and they employ between 300 and 400, this is a large-scale retrenchment 40 employees, and they employ between 400 and 500, this is a large-scale retrenchment 50 employees, and they employ over 500, this is a large-scale retrenchment If a big employer retrenches fewer employees than the numbers listed above, this may still be considered as a large-scale retrenchment. This is if the number of employees to be retrenched – together with the number of employees who have been tretrenched in the last 12 months before the proposed retrenchment – is equal to the numbers listed above. The heart of procedural fairness in retrenchment: the consultation procedure At the heart of procedural fairness in retrenchments is the consultation procedure. The first step in any retrenchment procedure is for an employer to consult with: Any party that they are required to consult with owing to a collective agreement A workplace forum or registered trade union if there is no collective agreement The employees themselves, who may possibly be affected by the retrenchment Employers need to make sure retrenchment proceedings in their company are both procedurally and substantively fair as – if not – they risk a negative outcome at the CCMA.

Conflict of Interest in Business Ethics Examples The case of De Beers Consolidated Mines Ltd (Venetia Mine) v National Union of Mineworkers and Others (JA83/18) [2019] ZALAC 72; [2020] 3 BLLR 251 (LAC) (11 December 2019) unpacks the issue of disclosing conflicts of interest to one’s employer. Facts of the case The appeal to the Labour Appeal Court (LAC) was against the judgment of the Labour Court which dismissed the review application of the award of the commissioner. This award had found the dismissal of the employee substantively unfair and ordered her reinstatement. The employee was employed by the employer for over 15 years without a blemish to her record. At the time of her dismissal, she held the position of procurement clerk responsible for contract management and procurement of outside service providers. The employee was found to have contravened a code of business conduct and ethics by failing to disclose or avoid a conflict of interest. The employer held that such conduct amounted to a failure to perform her duties conscientiously, honestly, and in the interest of the employer. She was accordingly dismissed. A complaint was raised by Grace Security’s (Grace) proprietor. The employer had contracted with Genesis Electric Services (Genesis) – one of its service providers – to fix an alarm at one of its properties. Genesis was unable to provide the service and subcontracted the work to Grace. The technicians indicated that they required a loan of R20 000 to purchase the alarm kit and to set up an office for Grace. It was agreed that the money would be lent and it was agreed that this would be deposited into the employee’s bank account. The two technicians were her tenants and did not have a banking account so she allowed them to use hers. After the dispute arose between two contractors the employee made a disclosure to the employer to the effect that two persons (being the technicians) were tenants on her property. The employer has a strict rule requiring employees to disclose any possible conflict of interest they may have. The employee had taken the stance that since she had no business interest in the venture, and the money deposited into her account was not for her benefit but that she merely accommodated her tenants, there was no duty on her to disclose that information. The employee gave evidence that she was not under any obligation to declare the deposit of R20 000 into her bank account because the source of payment was not linked to the employer’s business. In addition, the transaction between the contractor and the sub-contractor had nothing to do with the business of the employer. The question here is whether the employee was under the duty to disclose the transaction and her dealings with the two employees of Grace. The commissioner took the view that the employer could not prove that the employee had any business interest in either Genesis or Grace and, as such, found that the employee did not commit the misconduct with which she was charged. The Labour Court, like the commissioner, found that the employer failed to prove that the employee broke the rule relating to the duty to disclose. The Labour Appeal Court found that the employee was present when the R20 000 loan was negotiated between the employees of Grace (her tenants) and Genesis, and that part of the loan was for Grace to purchase the alarm kit that was necessary to render the service that Genesis had contracted to render to the employer, could be disregarded when this evidence was not challenged. Added to this is the unchallenged evidence that she was present at the meeting at which the employer’s service provider agreed to make the loan to Grace for, among other things, to purchase items needed to provide a service required by the employer. Whether she received any benefit or not was totally irrelevant as she had a duty to inform her employer about her involvement with the two companies. The LAC has now confirmed that if you have a high level of disclosure, specifically in positions such as procurement, employees should learn that they should rather disclose more rather than less. If they are in any doubt they should disclose. The LAC would not stand for a situation where a person in procurement offered the excuse that they did not think there was a conflict of interest and therefore did not make any disclosure. It is not for the procurement person to decide if there is a conflict of interest. They are obligated to make such a disclosure to the company as a part of their duty of good faith.

As an employer, you are entitled to institute policies – which do not infringe the rights of your employees – in your workplace to govern employee behaviour. However, when employees organise an action against your policy this could be considered a strike. The case of T iger Brands Limited v African Meat Industry & Allied Trade Union (AMITU) and Others (D1267/19) [2019] ZALCD 12 (25 October 2019) shows a similar situation. Facts of the case The employer, in response to the obligations in compliance with the Occupational Health and Safety Act 85 of 1993, implemented its Drug and Alcohol Policy (“DAP”) which entailed that all persons entering the premises of the employer were to be subjected to an alcohol breathalyser test. The implementation of the DAP resulted in an increase in misconduct dismissals related to the abuse of alcohol. The union and its members repeatedly expressed their disapproval of the use of the breathalyser as it was resulting in so many dismissals. At a union-management meeting held on the 16th of September 2019, the union recorded that employees were proposing to ban overtime until the breathalyser test was removed or stopped. On 25 September 2019, the union emailed correspondence signed by its General Secretary to the applicant worded as follows: “RE: Notice of Stopping Overtime – Snacks Treats & Beverages”. On the same day (25 September 2019) the employer replied to the union pointing out, inter alia, that if the respondents were to proceed with the threatened overtime ban the employer would immediately approach this court to interdict such conduct. The employer further urged the union to carefully consider the wisdom of its actions. The employer approached the Labour Court on urgent basis to interdict the imminent overtime ban on the basis that it constituted an unprotected strike as the procedural steps set out in s 64 of the LRA had not been followed by the union. The Court found that the strike would have been an unprotected one and it was interdicted.

The intervention by the Court to suspend a picket is a big hurdle to cross. The suggestion by the Court of contempt of Court proceeding on an urgent basis seems to be the way to go. Clover SA (Pty) Ltd v General Industries Workers Union of South Africa and others . The Labour Court (LC) ordered the union and employees to comply with picketing rules set by the CCMA and were further interdicted from committing violent acts during a protected strike. Section 69(2) of the Labour Relations Act (LRA) instructs the Court to intervene and grant urgent relief either by suspending the rules or by varying them. The Court found that an order suspending the right to picket should not be granted lightly and the onus rests on the employer to prove that this action is necessary. The employer’s concern was warranted by the intervention of the EFF, a member of which had made inflammatory comments in a speech to strikers in the picketing area. This single incident was not enough to justify suspending the strikers’ right to picket peacefully. The Court found that contempt of court proceedings would have been better suited to enforce compliance with the picketing rules, which would have formed an adequate alternative remedy to the present application. There was nothing to indicate that the picketing rules themselves were inadequate. The employer had, accordingly, failed to make out a case for a variation or suspension of the picketing rules. The application was dismissed.

The Compensation for Occupational Injuries and Diseases Act (COIDA), No. 130 of 1993, allows employees to claim compensation if an employee is disabled or disabled as a result of an occupational injury or disease/s that happen while performing their job. You must register with COIDA All employers need to be registered with the Compensation Fund which is the fund that administers COID claims. Once registered,  the employer will need to make contributions for the Fund. What is ‘work’ according to COIDA? This is not as clear as it might seem in De Gee v Transnet SOC Ltd (30085/2015) [2019] ZAGPJHC 2, the High Court had the opportunity to consider when an occupational injury can be said to have occurred during the course, and scope of an employee’s employment for purposes of COIDA. De Gee was an executive support manager and injured his lumbar spine when the lift he was traveling in fell approximately seven floors. He was using the lift to gain access to his office situated on the 48th floor of his employer’s building. The court laid out the following guidelines to determine whether the employee was acting in the course and scope of his employment when the injury occurred: An employee is acting in the course of his employment when he is doing something he was employed to do. Where an employee is traveling to or from work, the journey is dis-associated from the employee’s employment unless the employee is fulfilling an obligation imposed by the contract of employment. An employee does not start working until he has reached his work unless – at the time the injury occurred – the employee was doing something in the discharge of his duty towards his employer. After an employee has finished his work for the day and has started his way home, his employment continues while navigating the premises. Once an employee reaches a place of public access, his status as a worker is removed and he becomes a member of the general public. An employee may be deemed to be working while traveling to work if he is required to follow a prescribed route or is required to use a prescribed means of transport. In all cases where an employee – in going to or leaving – work suffers an accident on the way, the first question to be determined is whether an employee was at the place where the accident occurred by virtue of his employment or if as a member of the public. The court concluded that, based on the evidence before it, there was insufficient proof to determine whether at the time of the incident, the employee was acting in the course and scope of his employment. On this basis, the court found that the employee’s claim was not covered by COIDA. How does COIDA determine ‘disablement’? COIDA defines ‘disablement’ as follows: “temporary partial disablement, temporary total disablement, permanent disablement or serious disfigurement, as the case may be” From the above definition, it can be inferred that an employee may claim compensation in terms of COIDA if he is no longer able to work because he or she has been disabled as a result of occupational injuries or disease sustained while performing his or her job. Alternatively, the employee may claim benefits should he or she be off work for a period of time due to the disabling effect of the occupational injuries or diseases but be in a position to return to work after a time. Can relatives of a deceased employee claim COIDA benefits? If one of your employees dies as a result of an occupational disease or injury, a relative may claim the employee’s benefits. These relatives include: A widow or widower who, when the employee passed away, was married to the employee according to civil law, indigenous law, or custom. (The latter two options are only valid should the employee or his widow not have been part of another, pre-existing civil marriage.) Alternatively, if there was no marriage – but the widow/widower was living with the employee at the time as if they were husband and wife – the surviving partner is entitled to claim the COIDA benefits. A child – of the employee or of his/her spouse of a previous marriage – who is under 18. These children may include a: –   Child born after the death of the employee, – Stepchild, –  Adopted child, or –  Child born out of wedlock. A parent or another person who, as far as the Director-General is concerned – was acting in the role of a parent and was either wholly or partly financially dependent on the employee when he or she died. A sibling or half-sibling of the employee. A grandchild of the employee. As stated above, as an employer it is your legal duty to be registered with the Compensation Fund and pay over the contributions to the Fund. It is thus imperative for you and your HR department to know when a claim may be lodged so that this information can be disseminated properly to your employees.

Employee Wellness Programme- Employee Wellness starts with individual buy-in.  You can have the most amazing Employee Wellness Programme (EWP) but if employees don’t use it, they will not benefit from it and if none of your employees support it, it will not be successful. My suggestion would be to first identify the most critical needs.  Consult employees to get their input.  Find out what challenges they are facing and what their needs are.  Some individuals may be reluctant to speak in a group situation but will feel more comfortable participating in an (anonymous) online survey or answering questions that are then placed in a suggestion-type box.  When engaging with employees, use creative words that will encourage them to participate. Once you’ve identified the needs, start with short repetitive awareness campaigns to which individuals can relate and feel encouraged to support. It is also important that, if employers are (for example) promoting a healthy lifestyle, they need to walk the talk.  The management team needs to lead by example.  The business cannot focus on healthy eating habits in its awareness campaigns but then the canteen only sells hamburgers and fried fish and chips and when it hosts staff events it is all fast food.  Also, consider the different cultures within the organisation and their possible diet restrictions (including the timing of events). If employees feel that the management team and colleagues are not supporting the Employee Wellness Programme or their individual needs have not been considered, they too will be less inclined to support such a programme. It’s also important to remember that every employee is unique and a one-size-fits-all approach will not be as effective as a multi-faceted or customised approach. How to Create Happy Employees  The bottom line is that you can’t. Individual wellness starts with a changed mindset.  But you can plant the seeds and provide an environment that is conducive to such change. Adults must accept responsibility for their own wellness and if they are serious about it, they will embrace the opportunity provided by their employer to make positive changes to their current environment or how they respond to it. Individuals are responsible for taking care of their own bodies and that starts with healthier food choices, drinking more water, getting regular exercise, and protecting their personal time by learning to say no. Many experts suggest that the best way to start this Employee Wellness Programme is to create practical and simple habits by starting small, with simple routines, and then – once they’ve mastered those – add more.

Disciplinary Hearings in the Workplace Disciplinary Hearings In The Workplace- On 22 July 2010 an employee was charged with four counts of misconduct by the Eastern Cape Department of Education (Department) for awarding a service contract to her spouse’s company without the required approval and consent of her employer. The service contract was awarded to her spouse’s company in accordance with the required procedure. However, she did not receive permission from the Head of Department to make the award. The disciplinary hearing was scheduled for 12 August 2010 but only happened on 30 March 2011. On 22 June 2011, the Department informed the employee that she had been found guilty of two of the four charges brought against her and that she would be dismissed. She appealed in terms of section 8(4) of the Employment of Educators Act (EEA) which provides that a sanction may not be implemented pending the outcome of an appeal. Eventually, she was advised that her appeal was unsuccessful, on 14 February 2014, and she was dismissed. On 4 August 2014, an arbitrator found the dismissal was substantively fair as her misconduct seriously and negatively impacted the trust relationship between the employee and employer. The arbitrator’s award did not deal with procedural fairness. The employee approached the Labour Court to have the award reviewed and set aside. The Labour Court upheld the award. The Court refused leave to appeal. The application for leave to appeal in the Labour Appeal Court was also not successful. On petition to the Constitutional  Court, the employee submitted that the delay was an unexplained and unjustified departure from the Department’s internal disciplinary procedure. The Court held that the arbitrator was reasonable in finding that the employee’s dismissal was substantively fair. The court did find it necessary to determine if the dismissal was procedurally fair. The Court held that both the EEA and the Labour Relations Act (LRA) provide that discipline should be prompt and fair and that the disciplinary proceedings must be concluded in the shortest possible timeframe. The Court held that if an employee is retained for an extended period after the institution of disciplinary action, it may indicate that the employment relationship has not broken down. The Court therefore held that the delay did indeed render the employee’s dismissal procedurally unfair and that the matter must be remitted to the Labour Court as a specialist court for an appropriate remedy for the procedural unfairness to be determined, by that Court, as a matter of priority.