South Africa: The Department Of Labour And EE Reports: Not The End Of The Road

Last Updated: 30 May 2019
Article by Sherisa Rajah

This bulletin was compiled by Fasken partner, Sherisa Rajah, and candidate attorney, Abigail Butcher.

As most employers are aware, s 21 of the Employment Equity Act, 1998 (the "EEA") places an obligation on designated employers to submit an annual Employment Equity Report ("EE Report") to the Department of Labour. Where submitted manually, the reports are due for submission on the first working day of October. Comparatively, online reports are due for submission on 15 January each year.

Historically, many employers have experienced technical issues or 'glitches' in the days before, and especially on the day of, online submission. This often results in EE Reports being considered "late", with Department Officials unwilling to accept any submissions after the deadline.

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.

Conclusively, in a 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.

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