Chapter 2.

Laws Impacting
Human Resource
Ms: Tshipani RA
Learning Objectives
• Explain the constitutional principles that inform labour relations conduct in south
Africa
• Explain the common law duties and responsibilities of employers and employees
• Discuss the main provisions of the employment Equity Act
• Explain best practice guidelines in dealing with sexual harassment at the
workplace
• Discuss the main provisions of the basic conditions of Employment Equity Act
• Explain the purpose ,scope and application of the labour relations act
• Describe best practice guidelines for the management of employee performance.
• Explain how employees maybe dismissed under conditions of fairness
• Discuss how employees maybe retrenched under conditions of fairness
INTRODUCTION
• After the dispensation of the democratic government in South Africa workers are
protected by several pieces of labour legislation
• The labour relations act 66 of 1995 is the first and most important laws enacted by
the democratic government
• However all laws in South Africa are influenced by a supreme law which is the
constitution of the republic of South Africa(Act 108 of 1996
• In this fast changing world human resource management is required to adapt.
• South African organisations are not exempted from the changes that has affected
HR departments all over the world.
• The law is primarily for the protection of the employee from any exploitive and/or
discriminatory actions by the employer
• South Africa has obligations to international bodies such as the International Labour
Organisation (ILO)
Relevant ILO conventions and recommendations

• All South African labour legislation is designed in line with the

principles of ILO
• South Africa’s membership in ILO means that it undertook to comply
with the principles contained in ILO conventions
• Since 1994 the employment laws in South Africa are underpinned by
the principle of a non sexist , non racial and equality based
democratic society
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA ACT
108 OF 1996

• The constitution of the Republic of South Africa is the supreme law of the country and
supersedes all the other acts of the country
• South Africa has one of the most progressive constitutions in the world.
• The essence of the Constitution is human dignity, equality and freedom
• The drafters of the constitution explicitly state that in recognition of the past injustices
they intend to heal the divisions by installing values such as democracy, values and
social justice and human rights
• The constitution sets out the rights of all South Africans in the Bill of Rights ( chapter 2
of the constitution), providing workers with rights such as the following:
• 1.Freedom of association
• 2. Labour relations
• 3. The right to fair labour practices and many others
 The principle of equality
• The constitution promotes the principle of equality and , generally prohibits
unequal treatment and unfair discrimination by people or the state.
• Section 9 clarified equality as follows:
➔ Everyone is equal before the law and has the right to protection

and benefit of the law.

➔ Equality includes the full and equal enjoyment of all rights.
➔ The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds including race, gender, sex, pregnancy,
marital status. etc
➔ National legislation must be enacted to prevent or prohibit unfair
discrimination
FAIR LABOUR PRACTICE

❖The constitution provides clear guidelines with regard to employment relations, section 23
of the constitution stipulates the following provisions:
• Everyone has the right to fair labour practices
• Every worker has the right to form and join a trade union , to participate in the activities and
programs of a trade union and strike
• Every trade union and every employers organization have the right to determine its own
activities, organize, to bargain collectively and to form and join a federation
• Every trade union , employers organization and employer have the righto engage in collective
bargaining . National legislation may recognize union security arrangements contained in
collective agreements.
❖ Discrimination will not be considered unfair;
• When you discriminate because of the inherent requirements of the job
• When you discriminate in line with your affirmative action policy or programs.
COMMON LAW AND THE EMPLOYMENT CONTRACT
• Common law is law that is not written into legislation, but is derived from our
various legal roots
❖Essential elements of a contract of employment :
• It is a voluntary agreement
• There are two legal parties
• The employee agrees to perform certain specified and/or implied duties for the
employer
• There is an indefinite or specified period
• The employer agrees to pay a fixed or ascertainable remuneration to the
employees, The employer gains a right to command the employee as to the
manner in which he or she carries out his or her duties.
DUTIES OF EMPLOYEES AND EMPLOYERS
DUTIES OF THE EMPLOYERS
• To receive the employee into service
• To pay the employee
• To ensure that working conditions are safe
• To ensure that working conditions are healthy
• To ensure compliance with statutory requirements
DUTIES OF THE EMPLOYEES
• To enter and remain in service
• To maintain reasonable efficiency
• To further the employers business interests
• To be respectful and obedient
• To refrain from misconduct generally
The Basic Conditions of Employment Act 75 of 1997(BCEA)

❖ The (BCEA) is a vital component of South Africa’s protective labour law framework. Its primary objective is to:
• Stipulate and regulate relevant conditions of employment and the variation of such conditions
• Contribute to the creation of a secure, equitable, non –exploitative and harmonious work climate
• Give effect to and regulate fair labour practices as advocated in the constitution
The HR departments must posses and save the latest copies of the legislation to use for reference purposes.
Written particulars of employment (section 29)
Under section 29(1) of the republic of the Basic Conditions of Employment Act no 75 of 1997(as amended), the
employer is obliged to provide the following particulars and details of the employee
• Full name and address of the employee
• Name and occupation (or brief job description) of the employee
• Place or places of work
• Date of commencement, ordinary working hours, and workdays
• Payment in kind and the value of such payment
• Whether wages will be paid on a daily, weekly or monthly, or commission basis
• Overtime
• Deductions to be made from employees remuneration
• Whether wages will be calculated on an hourly, weekly, monthly , or commission basis
THE BASIC CONDITIONS OF EMPLOYMENT ACT CONTINUE………….
• Leave entitlement
• Notice periods
• A description of bargaining council
• A list of any other document which form part of the employment contract
• An indication of how and where the employee can have access to other documents that also form part of
the employment contract.
❖ The activities that HR departments must engage in for new employees
• Draft an employment contract in which the listed particulars details are provided
• Explain the contents of the employment contract to the employee
• Promote clarity and understanding by offering the employee an interpreter where necessary
• Explain the contents of the other supporting documents and how they can be accessed
• Answer all the questions the employee might raise
• Keep copies of the employment contract for a period of at least three years.
• Display the summary of the Act in a prominent place in the workplace.
REGULATION OF WORKING TIME

• Chapter 2 of the BCEA regulates the working time for the employees to protect them from
exploitation but acknowledge business imperatives.
❖ Ordinary working hours(section 9)
Generally , employees need to work:
• 45 hours per week
• Nine hours in any day if the employee works for five days or fewer per week
• Eight hours in any day if the employee works more than five days a week.
OVERTIME (section 10)
One of the most controversial issue and conflict –laden in employment relations is when
employees are required to work overtime due to business demands, An employer may not require
or permit an employee to work overtime except according to an agreement. More than three ‘s
overtime a day or ten hours overtime a week, even if there is an agreement to this.
OVERTIME PAY (SECTION 10)
An employer may at least pay one or one and half times for overtime worked
BASIC CONDITIONS OF EMPLOYMENT ACT …….
• Pay normal wage and then grant 30 minutes time off on full pay for every
hour of overtime worked
• Grant 90 minutes s paid time off for each hour of overtime worked.
COMPRESSED WORKING WEEK
To promote labour flexibility relating to work time, employers and employees may
agree in writing to work up to 12 hours in a day. Despite the agreement employers
are not allowed to force employees to work more than 45 hours a week;more
than 10 hours overtime in any week or more than five days a week.
Averaging of hours of work (section 12)
despite the concession employers are not allowed to compel
employees to work more than 45 hours in a week and an average of
five hours overtime in a week over agreed period
continue........

• Meal intervals(section 14)an employer must give an employee who

works continuously for more than five hours a meal interval of one
continuous hour, the employer is allowed to reduce the meal interval
only if there is a written agreement in writing but not less than 30
minutes
• Daily and weekly rest period
• An employer must allow an employee a daily rest of atleast 12
consecutive hours between ending and restarting work
• A weekly rest of 36 hours consecutive hours which unless agreed
must include sundays.
continue..........

• Pay for work on sundays (section 16)

• An employer must pay an employee double who works on sundays for each
hour worked
• under certain circumstances in an agreement an employer may pay an
employee who works on Sunday paid time off instead of cash
• Night work (section 17)
• Night work is defined as the work that start after 18:00 and before 06:00 the
next day
• An employee is permitted to allow an employee to work night time under
agreement and compensate the employee by the payment of
allowance,which maybe a transport or reduction of working hours.
• Public holidays (section 18)
• An employer may not require an employee to work on public holiday
except if there is an agreement to do so. An employee who works on
a public holiday must be paid at least double the ordinary wage for
the day.
Regulation of leave
• Regulation of leave according to Chapter 3 of the BCEA to ensure that
the needs of the individual employees and those of the business is
balanced
• Types of leave
• Annual leave (section 20-21)
• An employee is entitled to have 21 consecutive days annual leave or
by agreement one day of every 17 days worked or one hour for every
17 hours worked
• Sick leave (section 22-24)
• an employee is entitled to six weeks paid sick leave in a period of 36
• months. An employee is entitled to one day's sick leave for every 26
days worked.
• Maternity leave(section 25-26)
• A pregnant employee is entitled to four consecutive months's
maternity leave and is not allowed to perform work that is hazardous
work to her or the unborn child.
• Family responsibility leave (section 27)
• full time employees are entitled to three days paid family leave per
year on request.
Family leave may be granted in the event of death of the
The Employment Equity Act 55 of 1998(EEA)

• The Employment Equity Act gives effect to chapter 9 of the constitution

and has two main elements:
• The Prohibition of discrimination by all employees
• The duty placed on designated employees to implement affirmative
action measures by means of employment equity plans
• The EEA employment guidelines regarding :
• 1. Unfair discrimination
• Under section 5(1) of the act, discrimination is prohibited and
employers need to promote equal opportunity within the organisation
The management of sexual harassment
• The EEA considers sexual harassment as a form of discrimination
• Sexual harassment can simply be defined as unwelcome conduct of
sexual nature that violates the rights of an employee and costitues a
barrier to equity in the workplace
• Organisation must communicate with their stakeholders and develop
policies that will ensure that their workplaces are free of this
behaviour and practices.
• HRM guidelines of a typical sexual harassment policy
Guidelines for HRM outline of a typical
sexual harassment policy
1.Eliminating acts of sexual harassment in the organisation
2.Creating and develop workplaces that are free from sexual
harassment
3.Creating and develop workplace that abide by Constitutional
principles such as the right to privacy
4.Ensuring that the workplace is free of pictures,videos and any other
material deemed to be demeaning to women
5.Enabling the organisation to deal with allegations of sexual
harassment in a sensitive ,unbiased and confidential manner.
The Employment Equity Act on Discrimination

• Fair discrimination
• If the concept of unfair discrimination exists it implies that there
maybe certain conditions where discrimination can be seen as fair
discrimination.
• Two instances where discrimination is not judged as unfair
• when you discriminate because of the inherent requirements of a job
• When you discriminate in line with your affirmative action policy or
programme
• Disputes over unfair discrimination
• The remedy for for a candidate or employee who feels that he or she
has been a victim of unfair discrimination can refer the dispute to the
Commision, Mediation and Arbitration (CCMA) within a period of six
months after the act or commision
• Medical tests
• In terms of section 7 of the act, medical testing is prohibited unless:
• legislation permits or requires the testing or
• it is justifiable in the light of medical facts
• Psychological tests and other forms of assessment
• According to section 8 psychometric tests may only be used if it can
be certified that the tests:
• Are valid and reliable
• Are fairly applied to all job candidates or employees
• Do not discriminate unfairly against any job candidate, employee or
group of employees
• Testing for HIV and Aids
• Testing of HIV and Aids is prohibited and permissible only if the
Labour Court declares it as justifiable in terms of section 50(4) of the
Act.
• The Labour Court should consider the following for the testing to be
justifiable:
• The provision of counselling
• The maintenance of confidentiality
• the period for which testing is authorised
• Designated employers and their duties
• Designated employers are those who employ more than 50
employees
• Are a municipality
• Are an organ of the state
• Are bound by a collective agreement, which has appointed them as
adesignated employer
Designated employers need to do the following
• Conduct an analysis of their employment policies to identify
discriminatory barriers and practices
• set out a profile of employees in each occupational catergory and
level and to determine the level of underrepresentation of the people
from the designated groups
• Prepare and draw up an employment equity act, which aim to adress
issues of underrepresentation of designated groups.
Designated groups
Africans ,colored's, Asians, women from all population groups and
people with disabilities
Suitably qualified candidates:
• The EEA defines suitably qualified candidates as those who have one
or a combination of the following
• Formal qualifications
• Prior learning
• Relevant experience
• The capacity to acquire within a reasonable time the ability to do
the job
Guidelines for HR departments (the Employment Equity Act)
• The department of Labour (DOL) wants organisations need to do the following:
• Consult with employee, honestly, about conducting a workplace analysis
• Consult about the preparation and implementation of employment equity plan
• Display a notice that summarizes the provision of the act in accessible and
prominent place at work
• Appoint and empower an individual to monitor and implement the
employment equity plan.
Labour Relations Act 66 of 1995(LRA)
• The Labour Relations Act seeks to advance economic development ,social
justice, labour peace and the participation of employees .
• Objectives of the Labour Relations Act:
• Giving effect to the rights and obligations of employees and their unions as well
employers in accordance with the fundamental rights of the constitution and
international labour conventions
• Promoting collective bargaining
• Promoting employee participation at the workplace
• Promoting dispute resolution and labour peace
The Labour relations Act continue………..

The Act is relevant and has a considerable impact on a number of

HRM key functions:
• Performance appraisal and management
• Training and development
• Discipline management
• Retrenchments
• Collective bargaining and employee participation
• Strike handling and dispute resolution
Performance management and dismissals
• The Code of Good Practice offers HRM guidelines on what
organisations need to do when they are faced with the dilemma:
• The key principle of the code is that employers and employees
should treat one another with mutual respect
• Actions of the employer must be informed by the contents of
existing collective agreements.
• It is of general application and each case must be approached in
relation to its unique factors and circumstances.
A dismissal is deemed unfair if:
• It is not done for a fair reason
• In accordance with a fair procedure
• Whether or not a dismissal is for a fair reason is determined by the
facts of the case, the fairness can be determined by referring to the
guidelines set out below:
• The conduct of the employee
• The capacity of the employee
• The operational requirements of the employers business.
The LRA considers dismissal automatically unfair if the reason for
dismissal is:
• One that amounts to an infringement of the fundamental rights of
employees and trade unions
• One of those listed in section 187, such as participation in a lawful
strike , intended or actual pregnancy, and acts of discrimination
Incapacity: poor work performance dismissals
• Employers are often faced with poor work performance by
employees
• It is generall accepted that the employer cannot be burdened with
employees who are under-performing.
Guidelines covering employees on probation

guidelines for HR departments for employees on probation:

• Specify clearly and as early as possible , the performance standards,
this must preferably in writing.
• Measure as objectively as possible ,the employees performance
• Provide performance feedback in at least one formal meeting
• Allow the employee to explain to you the reason for the
unacceptable performance
• Explain clearly to the employees the consequences of not
performing according to the specified job standards
HR guidelines for Employees who are no longer on probation
• Give employees sufficient time to improve their performance
• Conduct a thorough investigation as to the reason s for the poor
performance
• Consider any viable alternatives to dismissal
• Ensure that throughout the process a trade union representative or
a fellow assist the employee
 Employee misconduct and dismissals
• Principles of establishment of a disciplinary code
• The rules must create certainty, employees must be clear about
what the rule is and its consequences
• The rules must be consistently applied
• Disciplinary codes are aimed more at correcting behaviour than
punishing behaviour
• Formal procedures do not have to be invoked everytimea rule is
broken
HR guidelines to determine to determine
dismissal for misconduct:
• Personal circumstances
• Length of service
• Previous disciplinary record
• The nature of the job
• The circumstances of the infringement itself
Industrial action and dismissals
• Participation in a strike that does not comply with the provisions of
the Chapter IV is considered misconduct
Employee incapacity:ill health or injury and
dismissals
Guidelines in cases of incapacity: ill health or injury:
• Incapacity on the grounds of ill health may be temporary or permanent
• The employer should investigate the extent of the incapacity or the injury
• If the employee is going to be absent for a long time, the employer should
investigate all possible alternatives
• In Case of permanent incapacity, the employer should consider possible
alternative employment
• In the process of the investigation the employee should be allowed to
state a case in response and be assisted by a trade union representative
Guidelines in cases of dismissal:Ill health or injury
Fairness of a dismissal for incapacity due to ill health or injury should consider
the following:
• Is the employee capable of doing or performing the work
Dismissals based on operational requirements:
• When an employer is contempating the dismissal of an employee due to
operational reasons:the following should be used as guideline:
• The notice and information to the effected employees
• Issue out a written notice inviting the other party to consult with
• Explain the reasons for the proposed retrenchments
• Outline all the alternatives that were cosidered
• Provide the number of employees that will be affected and their job categories
The consultation process
The employer must:
• Consult with any person it needs to consult with
• Consult directly with the affected if they are not unionised
• Allow the consulting party to make any representation regarding the
proposed retrenchments
• Seriously consider the representations made and apply its mind
• Engage in a meaningful joint consensus seeking process
The national minimum wage act 9 of 2018
• Since January 2019 ,South Africa has implemented a national minimum wage of
20 per hour(R18 for farm workers, R15 for domestic workers and R11 for those
employed by expanded public work programs.
• The purpose of the (NMWA) is to promote economic development and social
justice.
• The skills development Act 97 of 1997(SDA)
Purposes of the Act are:
• To develop the skills of the South African workforce to use the workforce as an
active learning environment
• To provide employees with opportunities to acquire new skills
• To provide opportunities for new entrants to the labour market to gain
workplace experience
• To employ persons who find it difficult to be employed
The skills development and training
• Sector education and Training Authorities
• Functions of the institutional bodies:
• Developing a sector skills plan
• implementing its sector skills plan by establishing learning programs
• Supporting the development of learning materials
• Improving the facilitation of learning
Learnership and skills programme
• Characteristics of learnership programs
• They have a structured learning programs
• They have a structured work experience component
• They may lead to a qualification recognized by (SAQA)
• The employer needs to expose the learner to practical work-based
experience
Skills programmes:
• Occupation based
• Credit bearing and leading to an NQF qualification
workplace skills
The HR department needs to follow certain steps when developing
and implementing a workplace skills :
• Proper workplace planning
• Implementing the workplace skill programme
• Monitoring, evaluating and reporting on the WSP
• Collective bargaining and employee participation
• Defining the organisation’s skills requirements
COLLECTIVE BARGAINING AND EMPLOYEE PARTICIPATION
Collective bargaining agents prefer to include:
• Freedom of association
Chapter 2 of the LRA, guarantees employees right to freedom of
association and outlaws any victimisation by the employer
The organisational rights of trade union
Two types of trade unions in terms of LRA
• The majority trade union with with at least 50% plus one employee
representative at the workplace.
• The other is a sufficiently representative trade union with at least 30%
representation
• Rights of majority trade unions:
• Right of access to workplace for meetings
• Rights to conduct ballots among employees
• Right to conduct an election at the workplace outside of working hours
• Right to appoint shop stewards
• Right to be granted stop-order facilities for the payment of trade union
due
Procedure for the exercise of organisational rights
The registered trade union may notify an employer in writing anytime
it wishes to exercise organisational rights in the workplace:
• The exact workplace where the trade union seeks to exercise the
rights
• The types of rights it wants to exercise
• The level of representativeness and evidence to substantiate the
allegation
Occupational health and safety act 85 of 1993(OHSA)
• The aim of OHSA is to establish institutions such as health and safety
committees and the appointment of safety representatives at the
workplace.
The Broad -Based Black Economic
Empowerment Act 53 of 2003
• Section 1 defines BBBEE as the viable economic empowerment of all black people, in particular
women, workers, youth, people with disabilities, and people living in rural areas.
Strategies to realise the ideals:
• Increasing the number of black people who own enterprise and productive assets in the formal
market
• Encouraging human resource and skills development
• Investment in enterprise that are owned or managed by black people
• Achieving equitable representation in all occupational categories and levels at the workplace
• Encouraging preferential procurement from enterprises that are owned or managed by black
people