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Ivan Israelstam

When presiding over unfair retrenchment cases, our courts have started to look much more closely than before at the circumstances of each case.

They look at whether there could have been some way of saving jobs and whether the employer tried hard enough to save jobs.

For example, in the case of FAWU v SA Breweries Ltd (Contemporary Labour Law Vol 14 No 2 September 2004) the employer retrenched employees after a major reorganisation in the way that work was done.

This change in the organisation required that production employees would need to be able to perform a much wider variety of work than what they had previously been involved in.

In order to establish whether these employees had the required skills to work in the changed jobs the employer applied, among others, the adult basic education and training (Abet) test.

That is, in the absence of other suitable educational qualifications, the employer tested the employees to assess their levels of at Adult Basic Education and Training (Abet).

Certain employees who failed these tests were selected for retrenchment.

The Labour Court found that:

  • Retrenchment has a "deleterious impact on the life of workers and their families" and can be seen as a "death penalty".
  • Therefore an employer contemplating retrenchments must be able to prove that dismissals of this type were being implemented as "a last resort".
  • And if there was a viable alternative to retrenchments the employer is obliged to implement it.
  • SAB acted unilaterally in applying the Abet levels.
  • The court found that these Abet levels were not a valid test of the retrenchees' ability to work in the newly created jobs.

This is because Abet measures more general abilities, specifically reading and writing, rather than the actual measurable skills required for the specific jobs in question.

The employees' experience should also be taken into account in assessing their suitability for the jobs.

  • SAB did not argue that it did not have the funds to devise a valid and appropriate test to assess the suitability of the employees for the newly created positions.

The employer therefore could have and should have had such appropriate tests designed.

  • The retrenchees had long service
  • Due to apartheid, the employees' only schooling option had been "Bantu education".
  • SAB had not taken adequate steps to assist the employees to obtain the desired Abet skills levels.
  • SAB had been inflexible as regards the consultation process.
  • The retrenchment of these employees was unfair both procedurally and substantively (ie it was for unfair reasons).

In the case of CWIU and Others vs Latex Surgical Products (Pty) Ltd (2006, 2 BLLR 142) the employer gave notice to the trade union that it proposed the possible retrenchment of 33 employees.

After consultation, the employer implemented retrenchments for reason of its financial circumstances.

In deciding on which employees were to be retrenched, the employer rated all the employees on six criteria and chose those whose ratings were the lowest.

The employees who were retrenched lodged a dispute with the Labour Court, which found that the retrenchments were fair.

The union went to the Labour Appeal Court which found that:

  • After the retrenchments the employer had hired a large number of casual workers.

This persuaded the court that there had not been a good reason to retrench the employees as there was clearly work for them to do.

  • The employer had neither shown how it had applied the criteria for choosing who to retrench nor that it had applied these criteria objectively.

The retrenchments were therefore declared to be unfair and those employees who had not found other jobs were reinstated with 12 months' back pay.

Employers need to learn form the above cases that:

  • The law keeps changing and all employers need to keep up with these changes.
  • Retrenching employees and replacing them with others is unacceptable.
  • Employers must use retrenchment criteria that can be measured objectively and must be able to show that such objective measurements were in fact made and properly used.
  • Retrenching employees is becoming harder and harder.
  • The biggest, most powerful and most experienced of employers can lose in the Labour Court.

Therefore, no effort must be spared in ensuring legal compliance.

  • The need to apply labour-law expertise is not a luxury but a basic necessity
  • Such expertise must be applied before a retrenchment decision is made.

Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 011-888-7944 or 082-852-2973, or on e-mail:

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

 

 

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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