Employment Equity Act, 1998 (Act No. 55 of 1998)

Code of Good Practice

Integration of Employment Equity into Human Resource Policies and Practices

Part C : Ending Employment

21. Terminating Employment
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21.1SCOPE

 

An employer may terminate the employment of an employee by agreement or for reasons based on misconduct, incapacity or for operational requirements. This section outlines some of the key employment equity considerations in ensuring that employment is terminated in a fair and consistent manner.

 

21.2IMPACT ON EMPLOYMENT EQUITY

 

21.2.1Terminations should be fairly and lawfully effected and must serve the purposes of the employer without discriminating against any employee.

 

21.2.2In the context of termination for operational requirements, an employer, when consulting with the affected party, should consider the appropriateness of adopting the standard selection criteria of Last In First Out (LIFO) as this may  undermine the retention of designated groups. In the context of employment equity, traditional criteria may undermine the progress made to achieve numerical targets and would need to be revisited to ensure that they support the achievement of employment equity objectives.

 

21.3POLICY AND PRACTICE

 

21.3.1In order to achieve numerical targets, employers may initiate voluntary exit strategies to make space for designated groups. This strategy should be preceded by consultation in order for it to be accepted as a legitimate affirmative action measure. It should be transparent and effectively communicated to those existing incumbents who may be affected. Employers should be guided by the long-term viability and sustainability of institutional knowledge in making the decisions to use voluntary exits of non-designated groups, as a strategy to achieve numerical targets. An employer should implement this strategy in tandem with skills development, career development and succession planning to ensure that skills that are core to the employer are replaced.

 

21.3.2When terminating the employment of an employee for reasons of incapacity based on disability or chronic illness, employers should refer to the Code of Good Practice on Key Aspects of HIV/AIDS and Employment and the Code of Good Practice on the Employment of People with Disabilities.

 

21.4KEY LINKS TO OTHER TOPICS IN THE CODE

 

21.4.1Skills development - An employer should provide skills training to its managers to ensure that they do not act in a discriminatory manner.

 

21.4.2Disputes and grievance resolution - Termination of employment must be conducted according to fair labour practices and in line with the employer's procedures, including its discipline, grievance and dispute resolution procedures.