IS YOUR EMPLOYMENT EQUITY “CLICK” WORTHY?

“I do not believe anyone sets out planning to fail, but sometimes priorities (too many) or time (not enough) or self-discipline (lack of) results in our failing to plan which can make all the difference between an awesome victory or tragic loss.”


I’ve no doubt you’ve heard Benjamin Franklin’s quote ‘If you fail to plan, you are planning to fail’.


Maybe you have simply read the statement and thought: ‘yes, that’s obvious, it makes sense’ and left it at that.


If we look at the above in the context of the Employment Equity. Do you have an Employment Equity plan in place that is monitored during the course, of the year, at your committee meetings? It must be noted that this is a requirement by the Employment Equity Act.


Or do you just hope to sprint over the line at submission time or are you currently in the process of playing catch up and need some additional assistance?


You may have previously experienced technical issues or 'glitches' in the days before, and especially on the day of, online submission. This could have resulted in your EE Reports being considered "late", with Department Officials unwilling to accept any submissions after the deadline.


Overview by Sherisa Rajah

In the matter of Absa Bank Limited v Director General: Department of Labour, Absa Bank sought an order from the Labour Court declaring that they had complied with s 21 of the Employment Equity Act and that the Minister of Labour be directed to reflect Absa's name on the register published in terms of s 41 of the EEA, confirming that it has complied with s 21 of the EEA.


In this matter, Absa Bank opted to utilise the online submission, and had captured their EE Report into the data portal but had not officially submitted the report by clicking the 'submit' button prior to the closure of the deadline. Absa alleges that they experienced technical difficulties with logging into the website in the 48 hours prior to the submission deadline. The Department of Labour then notified Absa after the deadline had passed that they had not submitted the report, and furthermore that officials of the Department of Labour had no authority to condone the "late" submission of the report.


The court approached the issue by considering the definition of 'serve' or 'submit' in s 1 of the EEA. To 'serve' or 'submit' in relation to any communication means: to send it in writing, delivered by hand or registered post; to transmit it using any electronic mechanism as a result, of which the recipient is capable of printing, the communication; or to send or transmit it in any other prescribed manner.


The court found that in as much as it is acknowledged that the pressing of the 'submit' button on the online platform is essential for the Department of Labour to establish whether the document was submitted, such an approach takes form over substance. The requirement or obligation imposed by the Department of Labour to press the 'submit' button is merely administrative and not a statutory one. Thus, once it is established that the communication was transmitted using the online mechanism, and that the DOL could access and print that report, as contemplated in the definition of 'serve' or 'submit', the employer has discharged its obligations. The court declared that Absa had complied with the provisions of s 21 of the Employment Equity Act and as such, the Minister of Labour must reflect their name on the register to be published in terms of s 41 of the EEA.


In scenario where a designated employer has uploaded their EE Report to the data portal but is unable to click 'submit' due to technical difficulties, such an employer has complied with its obligations in terms of the EE Act and cannot be held to be non-compliant with their obligations in terms of the Act.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


The Employment Equity Act sets out requirements, that extend far beyond the submission of the EEA2 & EEA4 documentation. Should designated employers fail to comply with these they could face severe penalties.


So why not contact Compliance Hub today, who will be able to assist you with your Employment Equity planning……


Article By:

Tiffany Reed: HR & EE Consultant - Compliance Hub

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