Skip to main content

Article 11/2026

Which principles regulate the choice of economically active population (EAP) where a designated employer operates in more than one province?

Which principles govern the election of EAP where the predominant/major part/ majority of the operations of the designated employer exist?

_____________________________________

The aforesaid principles are to be extracted from EEA8 and EEA12.

EEA8

Scenario 1: where the designated employer operates in more than province

  • The designated employer must consider the nature of its operations and the geographical area(s) of its operations.
  • It must choose either the national or regional EAP for the analysis in terms of s19 of the EEA (inclusive of its EEA plan and reporting).

Scenario 2: where the designated employer operates in more than one province and the predominant/major part of its operations is in one province

  • The designated employer is to choose the EAP of that province.
  • Nevertheless, it must have regard to the EAP of the different provinces within which it operates, when setting EE targets.

EEA12

Scenario 1: where the designated employer operates in more than one province

  • It must consider the nature of its operations and the geographical area of its operations.
  • It can choose either the national or provincial EAP for each province in which it operates.

Scenario 2: where the designated employer operates in more than one province and the largest part of its operations is conducted in one province

  • It may choose the EAP of that province.
  • Nevertheless, it must have regard to the EAP of the other provinces within which it operates, when EE targets are set.
  • Designated employers using either the national or provincial EAP of a province, where the majority of their operations are, must nevertheless have regard to the variations between the EAPs of the different provinces when setting EE targets.
  • Designated employers must use the EAP chosen for the entire duration of the EE plan for the relevant 5-year sector targets.
  • The analysis of the workplace must be based on a snapshot of the employee distribution in various occupational levels on a particular date ito race, gender, disability, per occupational level on that date.

Concluding remarks

  • In terms of both EEA8 and EEA12, designated employers operating in more than one province may elect to choose either the national or regional (provincial) EAP for conducting the required analysis, preparing an EE plan and reporting to the Department.
  • EEA8 refers to the predominant or major part of the operations of a designated employer located in one province, whereas EEA12 refers to the majority part of the operations in one province – in both these instances, the designated employer must nevertheless have regard to the variations between the EAPs of the different provinces when setting targets to achieve equitable representation of employees from designated groups in all occupational levels.
  • Likewise, both in respect of EEA8 and EEA12, when a designated employer uses the national EAP, it must nevertheless also have regard to the above variations.
  • The true question to be determined is what constitutes the scenario entailing that the predominant/major/largest part of the employer’s operations is located in a specific province. Unlike the scenario in terms of Regulation 9(7) of Gazette 2, that specifically states that, if a designated employer operates in more than one sector, it should apply the numerical targets for the sector in which the majority of employees are engaged, a similar provision is not found in Gazette 2, dealing with this identified issue.
  • The viewpoint is held that, where such designated employer operates in more than one province, what will determine whether a predominant/ major part/largest part of the employer’s operations is located in a specific province will undoubtedly include whether or not the majority of its employees are employed in a specific province. What is uncertain is what role, if any, the following factors would play in identifying a predominant/major part/largest part of the employer’s business:
    • revenue
    • clients/customers
    • operational presence
    • considerations of the core business of the employer versus its non-core business, such as sales and distribution, etc
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?