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Johanette Rheeder

 

It is estimated that more than one hundred thousand employees have been affected during 2008 by the decline in the economy and the spin off on the world wide recession, either by being laid off or being hit by interim measures such as short time, extended time off without pay, cuts in overtime, no bonuses being paid or little or no increase in salaries. Many smaller employers are reducing numbers and owners and managers are going back to the drawing board to streamline businesses.

  

The prediction for 2009 is even grimmer with a projected incline of 3% in the unemployment rate and job losses being estimated to be between two hundred and three hundred thousand, the worst hit industries being the automotive, mining and clothing and textiles sectors.

 

Retrenchment is nothing but a dismissal for operational reasons, which can include a variety of reasons such as the financial decline of a business, an employer deciding to increase profits of his business or a part thereof, the introduction of new technology that results in a decline in positions or structural changes such as the transfer of a part of the business of the employer. Retrenchment is also known as a "no fault dismissal". Due to the fact that it is in essence still a dismissal, the requirement of "fair labour practices" still applies.

           

Fair labour practices are the constitutional right of every employee. The Constitution, by way of section 23(1) (a), specifically declares that every person has a fundamental right to fair labour practices. In the context of retrenchment, expression is given to this in the Labour Relations Act by affording an employee the right not to be unfairly dismissed and an employer the right to dismiss an employee for a fair reason based on the employer's operational requirements and in accordance with a fair procedure. 

       

The Labour Relations Act 66 of 1995 (LRA) codifies the requirements for retrenchments by way of section 189 and 189A. Employers cannot achieve a fair retrenchment process without following the requirements of the LRA as it underlines the constitutional right to fairness. Section 189 therefore regulates the exercise of the competing fundamental rights of an employee not to be unfairly dismissed and that of an employer to dismiss for operational reasons.

         

Because retrenchment is a "no fault" dismissal and because of its human cost, the LRA places particular obligations on an employer, most of which are directed toward ensuring that all possible alternatives to dismissal are explored and that the employees to be dismissed are treated fairly.

   

Section 189 and 189A places a high value on consultations, in fact, if the employer fails to consult with employees on retrenchment, it will be an unfair retrenchment and the employer will face re-instatement or a compensation order. The purpose of consultation is to enable the parties, in the form of a joint problem-solving exercise, to strive for consensus, if that is possible.                                                                                                                                                              

It is required of the parties to attempt to reach consensus on, amongst other things, appropriate measures to avoid dismissals. In order for this to be effective, the consultation process must commence as soon as a reduction of the workforce, through retrenchments or redundancies, is contemplated by the employer, so that possible alternatives can be explored. The employer should, in all good faith, keep an open mind throughout and seriously consider alternative proposals put forward. If this is not done and the employer made the decision before the process commenced, it will render the retrenchment substantively unfair.

          

The list of measures to avoid dismissals is vast and dependent on the employer and the industry the employer is operating in. Examples thereof are:

  • measures to increase productivity;·              
  • short time;·              
  • rationalizing costs and expenditure;·              
  • increase or decrease in shifts and length of shifts;·              
  • decreasing the number of contractors or casual labourers;·              
  • using employees to perform the functions performed by contractors or casual labourers·              
  • outsourcing a function to its own staff after the employees have formed themselves into a company; ·              
  • skills development to enable employees to move into different positions;·               
  • stopping overtime or Sunday work·              
  • bumping·              
  • reducing wages (by agreement)·              
  • early retirement offers or schemes·              
  • moratoriums on hiring new employees·              
  • gradual reduction of workforce by way of natural turnover·              
  • extended unpaid leave or temporary lay-off

                            

If one or more employees are to be selected for dismissal from a number of employees, the LRA requires that the criteria for their selection must be either agreed with the consulting parties or, if no criteria have been agreed, be fair and objective criteria. An example of fair selection criteria is "LIFO", which means that the last employee in, therefore the one with the least amount of service, is the first employee to be chosen for retrenchment. This criterion is based on years of service and not on any subjective means such as the performance or disciplinary record of the employee, which will be unfair.

    

Employees dismissed for reasons based on the employer's operational requirements are entitled to severance pay of at least one week's remuneration for each completed year of continuous service with the employer, unless the employer is exempted from paying severance.

        

For more information contact Johanette Rheeder on  

 

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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