N E W S & V I E W S • S E P T E M B E R 2 0 2 3 19 the Minister has the power to determine and set these targets (known as “sectoral targets”). Employers have been given five years to comply and meet these targets. This amendment has come under much scrutiny and has been labelled as being nothing more than quotas. Whether this is correct or not may still be determined by the Constitutional Court. The first challenge brought by the trade union, Solidarity, fell a bit flat and following a settlement reached between the parties, resulted in no material changes to the amendments at all. Watch this space! What these amendments will achieve though is that designated employers will need to be more serious about how they approach transformation in the next five years. Failure to do so may result in not receiving a compliance certificate and fines ranging in the millions or up to 10% of turnover. There was some fear that designated employers would enforce dismissals of employees who are over representative in certain occupational groups to avoid these fines. A word of caution- such an attempt may be seen as an automatically unfair dismissal and could result in a compensation claim of 24 months remuneration or could be challenged successfully in the Equality Court. Employers may feel stranded between the devil and the deep blue sea as they may not have many employment opportunities and cannot transform in time. Fortunately, the Act does provide for certain exceptions if one is unable to comply in time e.g., insufficient recruitment or promotion opportunities, insufficient employees with skills, qualifications or experience, court order, business transfers, and the impact on business economic circumstances. It is however essential that employers make a concerted effort with their transformation initiatives and recruitment strategies, and be able to illustrate with evidence, what it is they have done, the steps they have taken to achieve compliance or the reasons they were unable to do so. This may call for some creativity. For example, rethinking your approach to recruitment and making use of other newspapers or media when advertising vacant positions. You may need to approach specialist recruiters to assist with placing suitably qualified employees with disabilities. If the workplace is not suitable for employees for whatever reason based on race, sex, or ability, the employer may need to make reasonable changes to accommodate such employees. The workplace analysis is critical in assisting the employer to identify such barriers. Whether these new targets will be attainable is another debate on its own. One argument is that the economy and in turn companies would need to grow beyond realistic measures to facilitate a natural transformation of the workplace within the set time frames. With over 40% unemployment depending on the definition, a notable skills shortage and economic growth being where it is, this argument probably holds water. One of the welcome changes to the Act is the revised definition of designated employer. It now only affects employers who have more than 50 employees in its employ. Previously, employers who had a certain turnover irrespective of staff numbers, also had to comply with the transformation provisions. This certainly brings great relief for smaller family-owned businesses. But beware those businesses that deliberately restructure operations to reduce employee numbers and thereby attempt to avoid the transformation provisions. The equity minefield is wrought with complexity as we found out during a recent NCT equity committee workshop. The committee considered how complex it may become when one considers the fact that employees may start identifying with a sex or gender which is different from what was assigned to you at birth. This conundrum has been more prevalent in the United States in recent years where black Americans identify as white and vice versa. This is not just an American phenomenon as there are cases in South Africa where the race status quo has been challenged. One may be tempted to think that this is merely academic, however, it is no longer unusual to have multi-racial families. How should children from these families identify within the archaic framework found in the Employment Equity Act?
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