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Ivan Israelstam


Misunderstanding of the purpose and legal meaning of 'probation' causes employers and employees serious problems. Probation is incorrectly believed to be a licence to fire the probationary employee:

  • if the employer wants to make space for another prospective employee (eg. a friend, nephew or auntie of the employer)
  • for misconduct
  • because the employee 'does not fit in'
  • because a manager 'does not like the employee's face'

    in fact the labour law meaning of 'probation' is 'testing the employee's work performance'. That is, the only legitimate purpose of a probationary period is for the employer to assess the suitability of the employee in terms of his/her work performance.


    A probationary employee is one who has a conditional employment contract (written or unwritten). That is, the continuation of the contract is conditional on whether the employee's work performance during the probationary period shows that he/she is or is not able to carry out the work properly. While this describes the purpose of the probationary period it does not mean that the employer has a free licence to fire the probationer if the employer believes his/her performance to be unsatisfactory.


    On the contrary, the employer that places an employee on probation has a number of legal obligations including:
    • Making it clear that the employee is on probation
    • Clarifying the length of the probation period
    • Setting reasonable performance standards
    • specifying for and explaining to the employee the performance standards required
    • evaluating and monitoring the employee's performance against the set performance standards
    • informing the employee of performance shortcomings
    • issuing warnings to the employee where he/she is failing to meet the required standards
    • assisting, guiding, counselling, training the employee where necessary
    • before dismissing the probationer, giving him/her an opportunity to state his/her case.


    The employer is allowed to extend the employee's probation period in order to further assess the employee's performance. This might occur, for example, where the employee shows promise but has made some errors or the opportunity for evaluation has been reduced during the initial probation period.


    However, before extending the probation period the employer is required to give the employee the opportunity to make representations as regards the proposed extension.


    The Labour Relations act (LRA) does not mention the employer's right to use probation for any purpose other than that described in this article. In fact, item 8(1)(c) Of Schedule 8 of the LRA prohibits the use of probation for any other purpose.


    For example in the case of Msomi vs Protea Security Services (2004 3 BALR 360) the employee was promoted from Security Guard to Reliever Inspector. He was later demoted for having been involved in two vehicle accidents in the space of 10 days. The employer justified the demotion on the grounds of the employee's negligence and the fact that the employee's promotion had been probationary. The employee challenged this as an unfair labour practice and the CCMA found that:

    • The law does not allow for probation of a person already in the employer's employ. It allows only for probation of new employees
    • If the employer wished to demote the employee he should first have been counselled or given the opportunity to state his case
    • The demotion was therefore unfair
    • The employer has to pay the employee seven months' remuneration in compensation for the unfair demotion.


    Probation can be a very useful tool for the employer but must only be used after the employer has utilised labour law expertise in:

    • Designing a probationary policy and procedure
    • Setting realistic performance standards
    • Designing measures for monitoring and evaluating work performance
    • Training management in the implementation of the probation policy and procedure


    Ivan lsraelstam is the Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: .

    Our appreciation to Ivan and The Star newspaper for permission to publish this article.

 

POPI and consent - don’t get caught in your own net

By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr

 

2020 has given rise to many challenges for employers. The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. 

 

POPI distinguishes between the collection, storage and processing of personal information and special person information. Special personal information includes e.g. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees.

 

It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance. 

 

Section 1 of POPI defines consent as “any voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal information”. Written consent is not expressly required. However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. In the circumstances it is advisable for employees’ written consent to be secured. 

 

The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed.

 

The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR.

 

In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. The employees must be able to understand in clear language what they are consenting and the extent of the consent. Where necessary provisions should also be made specifically for the processing of special personal information.

 

Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee.

 

Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI. 

 

Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. This would cover instances where e.g. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act.

 

An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. While the term “legitimate interest” is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?

 

A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions.

 

So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. In the absence thereof, the employer will need to prepare and secure a further consent from the employee.

 

For more information, please contact Gillian Lumb at   

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

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