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VIEW SEIFSA TRAINING CALENDER
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
33
Wage increases and understand the exemption provisions from conditions of the Main Agreement, such as wages, when in financial distress
05
20
The energy crisis is the manifestation of policy and only policy reform will solve it
10
Empathy based customer service training improves customer experiences
14
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
40
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
16
33 Harassment in the workplace: Are your policies up to code?
44
COVID-19: The developing case law on vaccinations
47
What South Africa’s new Covid rules mean for masks at work
50
Arbitration Award
53
Women in STEM: A holistic approach is required to work together as equal contributors
54
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24
25
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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. Advertorials When a company logo appears with an article, it indicates that the article has been commissioned by the company. 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.
7
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;
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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 Management. We design, facilitate,
An effective Performance Management System entails:
1- or 2-day intervention aimed at
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
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;
•
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•
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•
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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Accredited Temporary Employment Service Providers as at 13 June 2022 • • • • • • • • • •
Adcorp Blu a division of Adcorp Staffing Solutions (Pty) Ltd Adcorp BLU a division of Adcorp Workforce Solutions (Pty) Ltd Alos Business Solutions (Pty ) Ltd AMT Africa Recruitment AMT Placement Services Babanango Operations (Pty) Ltd Bathusi Staffing Services (Pty) Ltd CAP Personnel Placements (Pty) Ltd CDR Contracts (Pty) Ltd Consortium Personnel Consultants Pty (Ltd)
• • • • • • • • • • • •
CSG Resourcing (PTY) Ltd Eduardo Construction (Pty) Ltd EFS Multi Construction (Pty) Ltd ESG Recruitment cc Fempower Personnel (Pty) Ltd Gee 2 Kay (Pty) Ltd Impact Human Resources Pty Ltd Ithemba Langemphela JLH Group (Pty) Ltd Lavoro Matkri (Pty) Ltd Lekang Projects & Security Services cc Mabhele and Associates (Pty) Ltd
• • • • • • • • • •
Madobra (Pty) Ltd MECS Africa (Pty) Ltd MECS Growth (Pty) Ltd Molapo Quyn Outsourcing Momotheka OHS Training Nelso Africa (Pty) Ltd On Time Boiler And Engineering Support Services cc Pachedu Trading (Pty) Ltd T/A People Dynamics Human Solutions Phakisa Holdings (Pty) Ltd Phakisa MSP (Pty) Ltd
• • • • • • • • • • • •
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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26
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 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
open-plan office set-up. Therefore, the risk of transmission was high.
The CCMA’s findings
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. • Material deadline and requirements Ad booking deadline - 1st of preceding month Ad material deadline - 17th of preceding month
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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
Click here for more information
Reading Country Club
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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