Home

Ivan Israelstam

 

Where there has been even only one employee retrenched, the Labour Relations Act (LRA) allows the CCMA and bargaining councils to arbitrate the retrenchment dispute where conciliation has failed to resolve it.

This has made it easier for employees to oppose retrenchments. That is, due to the quicker and simpler processes at the CCMA because compared to the Labour Court, employees are less likely to be put off by the intimidating prospect of taking their ex-employers to task for unfair retrenchments.

Despite the strict and clear retrenchment legislation, employers are still having to pay large sums of money to employees who have been retrenched incorrectly.

Three areas where employers infringe the law on retrenchment are:

  • Failing to follow the very detailed and rigidly enforced procedure for retrenchment.

For example, many employers do not, during the lead up to the retrenchment decision, carry out genuine and comprehensive consultations aimed at trying to save the jobs of the targeted employees.

  • Making the decision to retrench for the wrong reason. For example, it is illegal to retrench any employee for any reason related to a takeover of a business (or part thereof) as a going concern.

And "business" can mean any organisation whether it is a company, sole trader, welfare organisation, NGO, government department or other employer.

  • Using legally unacceptable criteria for deciding on which employees to retrench.

That is, targeting an employee for subjective reasons is unfair. For example, deciding to retrench Mr A because he is old, sick, injured, outspoken, strong-willed or performing badly would be considered unfair.

An exception is where the employer can show that the work performance of all employees has been:

  • Precisely, accurately and fairly measured;
  • Recorded in writing; and
  • Used fairly in deciding on which employees should be retrenched.

That is, the employer must implement proper performance appraisal exercises; arrive at accurate measurements of performance of all employees whose jobs might become redundant and be able to show that the appraisal ratings were arrived at objectively rather than resulting merely from the manager's feelings towards the employee or unreasoned opinion of the employee's work performance

In addition, the employer must have made it clear at the outset of the retrenchment procedure that work performance was going to be the criteria for selecting retrenchees.

In the case of Mokoena v Power Man (2005, 10 BALR 1047) the employee, an electrician, was retrenched after the division he worked in was closed down.

However, the employer failed to prove that there was a need to close down the division and retrench the employee.

The employer also failed to follow procedures for retrenchment. In addition, the employer was unable to explain why it had employed new electricians shortly before the employee's retrenchment and why the new employees had not been retrenched instead of Mokoena.

Thus, in this case, the employer managed to infringe all three fairness criteria of procedure, fair reason and fair criteria for retrenchment.

The arbitrator ordered the employer to pay the employee eight months' salary in compensation.

In the case of Esterhuizen v Aluminium Granulated Products cc (2009, 10 BALR 981) the employer claimed that the arbitrator did not have jurisdiction to hear the matter because the employee was not the only one to be retrenched.

However, the arbitrator dismissed this claim because no evidence had been led in this regard. In this case the employer was found to have failed to follow a fair retrenchment procedure and had also unfairly found the employee guilty of misconduct.

The arbitrator therefore found the retrenchment and the misconduct dismissal were unfair and ordered the employer to pay the employee R255 150 in compensation.

This case highlights the facts that employers should bring evidence at arbitration to prove all their claims, should not mix up misconduct issues with retrenchments and must follow proper procedures before dismissing employees.

New case decisions continue to refine and make subtle changes to labour legislation. This means that employers and employees cannot become complacent.

Employees risk losing their jobs and employers run the very serious risk of having to reinstate employees and/or to pay huge amounts in compensation in addition to retrenchment packages.

  • Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 011 888 7944, 082 852 2973 or [email protected]
  • 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 [email protected]

 

 

 

 

 

 

 

 

Courses and Workshops

 

                   

Workshop Chairing Disciplinary Hearings

21 & 22 October 2021 (09:00 - 16:00)

Interactive Online Course

Strategic Human Resources Management (HRM) and - Business Partnering

27, 28 & 29 October 2021 (08:30 - 16:00)

Interactive Online Course

Employment Equity Committee Training

27 October 2021 (09:00 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

28 October 2021 (08:30 - 16:00)

Interactive Online Course

Managing Day to Day Issues/ Problem Employees Full day workshop

28 October 2021 (09:00 - 16:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

29 October 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

19 November 2021 (09:00 - 12:00)

Interactive Online Course

Management and Leadership Skills

10, 11 & 12 November 2021 (08:30 - 16:00)

Interactive Online Course

Basic Labour Relations

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

Interactive Online Course

The OHS Act and the Responsibilities of Management

18 November 2021 (08:30 – 16:00)

Interactive Online Course

AARTO and the Impact on Your Business

19 November 2021 (09:00 - 12:00)

Interactive Online Course

POPIA: Protection of Personal Information Act

26 November 2021 (09:00 - 12:00)

Interactive Online Course

 

 Our Clients 

 

Android App On Google Play

Android App On Google Play