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Article 13/2026

Employment equity compliance certificates will be issued if a designated employer achieves the annual and eventual sectoral targets by 2030.  Such compliance certificates will also be issued if there are justifiable reasonable grounds for non-compliance in terms of Regulation 16(5) of Government Gazette 52515 of 15 April 2025 (Gazette 2).  If these grounds exist, an employer will therefore be able to justify why it deviated from its employment equity targets. 

What are these justifiable reasonable grounds for not complying with employment equity targets?

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Regulation 16(5) of Gazette 2 contains the following grounds:

  • insufficient recruitment opportunities – the lack of recruitment opportunities simply means the designated employer has been deprived of the opportunity of filling identified positions so as to ensure compliance with the employment equity plan targets
  • insufficient promotion opportunities – in short, a flat, horizontal organisational structure does not create the same promotion opportunities as a vertical organisational structure
  • insufficient target individuals from designated groups with relevant formal qualifications, prior learning, relevant experience or the capacity to acquire, within a reasonable time period, the ability to do the job – employment equity is not about filling positions from designated groups, but filling such positions with suitably qualified people from such designated groups (at all occupational levels in the workplace). There is no duty on a designated employer to fill positions unless the incumbents are indeed suitably qualified people in terms of s20(3), read with s20(4), of the EEA
  • impact of CCMA award/court order
  • transfer of businesses
  • mergers/acquisitions
  • impact of economic conditions on the employer

The harsh reality is that no business will be in a recruitment and employment mode if fertile economic conditions do not exist.

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?