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Impact of Landmark Verdict on Small Businesses in South Africa.


Introduction:


A recent landmark verdict achieved through a nine-month mediation process under the International Labour Organisation (ILO) has significantly changed the government's racial policy in South Africa. This breakthrough, driven by civil society organisations such as Solidarity, marks a significant shift in the implementation of racial legislation since the inception of the Employment Equality Act. While the battle is not over, let's explore how the verdict will impact small businesses in the country, considering the newfound flexibility in legislation and the implications for hiring practices and workforce composition.


Redefining the Use of Race:


The crucial outcome of the ILO-mediated process is eliminating demographic diversity as the sole criterion for determining workforce composition. Instead, the government has conceded to pressure and adjusted the regulations for greater flexibility. This represents a significant departure from the rigid application of race-based policies, opening up new possibilities for small businesses in their employment practices.


Implications for Small Businesses:


Employment Termination: The verdict prohibits any form of employment termination solely based on racial programs. This safeguards small businesses, ensuring workforce changes are not driven by racial factors alone.


Temporary Affirmative Action: Racial programs must now be temporary and specifically focused on affirmative action. This change allows small businesses to implement targeted strategies to address imbalances while ensuring fairness and inclusivity.


Flexibility in Considerations: The verdict emphasises that race should be just one of several factors considered in the preparation, implementation, and compliance of racial programs. Small businesses now have the opportunity to consider the inherent requirements of a job, the pool of suitably qualified candidates, qualifications, skills, experience, natural staff turnover, and recruitment and promotion trends in the workplace.


Non-Absolute Barriers: The new regulations state that there may be no absolute barriers to any employment practices regarding any group. Small businesses can now adopt a more holistic approach, considering multidimensional diversity (du Toit, 2023) beyond race when making employment decisions.


Justifiable Grounds for Non-Compliance: The verdict recognises that there may be justifiable grounds for non-compliance with "racial" program requirements. Small businesses can consider factors such as recruitment and promotion opportunities, insufficient availability of qualified individuals from designated groups, CCMA awards or court orders, business transfers, mergers, acquisitions, and the economic circumstances of the business.


The Road Ahead:

While this verdict marks a significant victory in the battle against the government's racial ideology, it is essential to note that it does not signify the end of all racial programs in South Africa. However, the newfound flexibility in the legislation allows small businesses to navigate their employment practices with greater autonomy, taking a more comprehensive and inclusive approach.


Conclusion:

The recent verdict attained through the ILO process has brought about transformative changes to the government's racial policy in South Africa. For small businesses, this means a departure from rigid race-based regulations and a shift towards more flexible and inclusive employment practices. By considering a range of factors beyond race, small businesses can ensure fairness, diversity, and equal opportunity within their workforce. While challenges may persist, this victory represents a strategic step forward in the ongoing battle for a more balanced and equitable society.


Is your organisation experiencing any employment equity challenges, received a compliance order or has been subpoenaed? 




Please don’t hesitate to contact me by clicking any of the links below.


Stephan du Toit.

Legal Advisor. 

 


Find additional information on employment equity in our other articles and information:


Employee-equity-vs-equality-in-business

Why does South Africa have Employment Equity?

Employment Equity Act

2018 Employment Equity Amendment


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Are you having difficulty with employment equity please don’t hesitate to contact me, by clicking any of the links below?

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