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Ivan Israelstam

 

Due to the fact that some employers are unskilled in dealing both effectively and legally with poor performance or misconduct they look for other ways of getting rid of ‘troublesome employees. However, the law has made it clear that employers must use laid down corrective/disciplinary processes in such cases and are not allowed to misuse other methods such as retrenchments.

 

Many employers cull undesirable employees by declaring jobs redundant and placing the incumbent employees in a ‘redundancy pool’ or ‘redeployment pool’. The employer then requires the pooled employees to apply for vacant posts but turns down the applications of the targeted ‘undesirables’. The practice of ‘pooling’ might succeed if the employer can prove that the pooling and the redundancies are legally justified in the prevailing circumstances, that there are no hidden agendas and that the employees concerned have agreed to the pooling option. However, this approach bears so many pitfalls and is so open to misuse that I strongly advise employers to avoid it.

 

A case that illustrates this point is that of Oosthuizen vs Telkom SA Ltd (2007, 11 BLLR 1013). Ooosthuizen was an engineer with 30 years of service. During a staff cut-back exercise his job was made redundant and he was placed in a redeployment pool with the agreement of his trade union. He then applied for 22 vacancies at Telkom but, although he was short-listed for some of them, he was unsuccessful with all of them. When he was retrenched he claimed that this was unfair as the employer had not consulted with him.

 

The Labour Court found that the employer had no obligation to consult with him as they had consulted with his trade union. The court therefore found the retrenchment to be fair. Oosthuizen therefore appealed to the Labour Appeal Court where it was found/decided that:

  • Employers are obliged not to retrench employees if this can be avoided.
  • The employer had offered to retrain the employees in the redeployment pool but had failed to retrain Oosthuizen.
  • It is unfair to retrench an employee whose job could have been saved via minimal retraining.
  • The employer had brought no evidence as to why the employee had been unsuccessful with his 22 job applications.
  • The fact that the employee had been short-listed for some of the jobs suggested that he had the basic qualifications required for those jobs.
  • In choosing Oosthuizen for retrenchment the employer had applied the criterion of required skills despite having agreed to apply the criterion of LIFO (last-in-first-out).
  • The employer, in deciding to choose the employee for retrenchment had completely ignored his 30 years of service.
  • The above meant that the employee may have been rejected for the vacant posts on arbitrary grounds.
  • The employee had belonged to a trade union and therefore would normally not have been entitled to individual consultations with the employer. However, the employer had conceded that the employee was a manager and the employer’s normal practice was to consult directly with managers on the retrenchment list even if they belonged to a trade union.
  • While the employer had entered into consultations with the employee’s trade union it had failed to consult on the issue of the criteria for deciding which employees should be placed into the redeployment pool.
  • No evidence was led to justify the employer’s decision to require the employee to apply for new positions alongside colleagues with shorter service than his.
  • As a result the retrenchment was procedurally and substantively unfair.
  • The employer was to reinstate the employee with 12 months’ back pay.
  • Should the reinstatement result in an extraneous employee the employer would have to consider retrenching another employee.
  • The employer was required to pay the employee’s appeal costs.

 

This case reinforces the fact that the courts are now placing a much tougher test than ever before on the question as to whether the employer is entitled to retrench employees. This means that hidden agendas are more likely to be uncovered and punished. Before employers consider dismissing employees under any circumstances they should obtain expert advice in order to ensure both effectiveness and legal compliance.

 

lvan lsraelstam is the Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 082 8522 973 or on e-mail address: or www.labourlawadvice.co.za.

 

What does POPI compliance mean?

By Jan du Toit

 

Latest developments – Registration of Information Officers:

 

On 17 May 2021 the Information Regulator’s long awaited online portal went live for the registration of Information and Deputy Information Officers.

 

The Information Officer of a Responsible Party is the person at the head of your company (CEO or MD) or any person acting in such capacity, or specifically appointed by the MD or CEO to be the Information Officer. Registration must be completed before the end for June 2021.

 

The address for the portal is  https://justice.gov.za/inforeg/portal.html   

 

The following information is required to successfully register: 

  • Company name.

  • Company registration number.

  • Company type.

  • Company physical and postal addresses.

  • Company telephone and fax numbers.

  • Information Officer gender, nationality, full name and surname, ID or passport number.

  • Deputy Information Officers same details as per above.

 

POPIA Compliance – what must be done?

With a little more than a month left before POPI becomes fully effective, many employers may find themselves out of time to become fully compliant to amongst other considerations, the 8 processing conditions prescribed in the Protection of Personal Information Act.

 

To be considered compliant the following must be considered and applied in the business of a Responsible Party before 1 July 2021. 

  1. POPI training / awareness sessions for the CEO / MD, managers and others tasked with the company’s POPI compliance project. Have a look on our website for the next POPIA training dates.

  2. Compliance audit to be conducted company-wide per department / division to determine the current processing practices within the organization and to establish what needs to be done to be compliant.

  3. Correction of contraventions as identified, and to introduce reasonable technical and organizational measures to prevent the loss or unauthorized access of Personal Information.

  4. Introduction of Data Subject rights and consent in the business through policies and consent clauses / paragraphs / contracts.

  5. The introduction of a PAIA manual (Promotion of Access to Information Act) that incorporates data subject rights and participation in terms of POPIA. This manual must be published on one of the company’s websites. It is also important to note that the current exemption granted by the Minister of Justice for some business to not have such a manual in place currently, expires at the end of June 2021.

  6. General staff POPI policy and legislation awareness training.

  7. Registration of the company’s Information Officer (the CEO, MD or any person acting in such position).

  8. Follow-up assessment on compliance measures and adherence thereto.

 

It is important to note that no institution, not even the Information Regulator, can “accredit” any Responsible Party in South Africa to be compliant in terms of legislation. Compliance (or otherwise) will only be determined should an investigation be launched by the Information Regulator following a complaint. Should such an investigation confirm a lack of compliance, consequences such an administrative fine not exceeding R10m may follow (which one may luckily pay off in instalments). Further to this those whose rights are infringed upon by a Responsible Party not adhering to the requirements of POPIA, may also institute civil proceedings. Such  proceedings may result in compensation being awarded for loss, as well as aggravated damages determined at the discretion of the court.

 

In terms of section 19 of the Act, the Responsible Party (business owner / employer) is required to introduce reasonable organizational and technical measures to secure the integrity and confidentiality of Personal Information. The organizational measures referred  to above includes inter alia both internal and external policies to introduce the principle of protection of personal information in the workplace, as well as the rights of data subjects.

 

To allow you more time to focus on your business, the author of this article compiled a bundle of detailed policies for your business, ready to use. This includes all relevant forms to be used and a template document with draft consent clauses / paragraphs / rules  to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages, and Independent Contractor agreements.

 

Also included is an Operator Agreement as required in terms of section 21 of the Act and a consent letter for existing clients / service providers, to agree to the continued processing of their Personal Information beyond June 2021.

 

The policies bundle includes: 

  • Privacy notice template to be published on your website.

  • Personal information protection policy.

  • Personal information retention policy.

  • Data breach policy.

  • Data breach register - form.

  • Data breach report - form.

  • Data security policy.

  • Data subject access request policy and procedures.

  • Data subject access request forms.

  • Processing agreement with third parties as Operators - contract.

  • Data subject participation - draft consent paragraphs / clauses to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages and Independent Contractor agreements

  • Guidelines on the appointment of deputy information officers, inclusive of appointment letter.

 

For only R3750 you can now order you set of POPI policies, ready to use. Contact Jan du Toit for further assistance at

 

 

 

 

 

 

 

 

Courses and Workshops

 

                   

 

POPIA: Protection of Personal Information Act

18 June 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

22 June 2021 (09:00 - 12:00) Fully Booked)

Interactive Online Course

22 June 2021 (13:00 - 16:00) (Fully Booked)

Interactive Online Course

23 June 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

23 June 2021 (13:00 - 16:00) (Fully Booked)

Interactive Online Course

29 June 2021 (09:00 - 12:00)

Interactive Online Course

COVID-19 Workplace Compliance Health, Safety and Claims Management Course

23 & 24 June 2021 (08:30 - 13:00)

Inter active Online Course

Basic Labour Relations

24 June 2021 (09:00 - 16:00) (Fully Booked)

Interactive Online Course

29 July 2021 (09:00 - 16:00)

Interactive Online Course

AARTO and the Impact on Your Business

25 June 2021 (09:00 - 12:00)

Interactive Online Course

Employment Equity Committee Training

02 July 2021 (09:00 - 16:00)

Interactive Online Course

Workshop Chairing Disciplinary Hearings

15 & 16 July 2021 (09:00 - 16:00)

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

16 July 2021 (09:00 - 12:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

22 July 2021 (09:00 - 12:00)

Interactive Online Course

Management and Leadership Skills

28, 29 & 30 July 2021 (08:30 - 16:00)

Interactive Online Course

 

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