Home

 

Ivan Israelstam

 
 

When an employer considers retrenching employees, full consultations must first take place about this intention before making any decision to retrench, according to the Labour Relations Act.  When employees belong to a trade union, the employer is required to consult with that union on several issues, the most important of which is ways of avoiding job losses.


Should the employer choose not to engage in proper pre-retrenchment consultations, and the employees are forcibly retrenched, this would normally result in a finding of unfair dismissal.  But where the employer has made every effort to consult, it can't be blamed for failure to do so.


There are several reasons that retrenchment consultations may fail to take place or may fail to comply with the requirements of the act. These include:

  • The employer was unaware of the legal obligation to consult with the employees/union.


Some employers are aware of the requirement to consult, but are not aware of the role of the union or the extent of the consultation requirements. It can also happen that the employer is not aware of the fact that the employees have joined a union.


It is unlikely that any of these reasons will be an acceptable excuse for the employer's failure to consult. This is because employers are required to find out about what they do not know.

  • The employer may have urgent reasons for needing to retrench, such as:

1. Dire financial circumstances threatening the immediate survival of the business.

2. A pressing need to get rid of employees pending a hastily arranged takeover by another entity. The prospective buyer may have set a tight deadline for the date of the takeover, and may have made it a condition of the deal that workforce numbers be reduced before the conclusion of the sale.

3. The employer may have no money to pay salaries during a consultation exercise (which may be protracted, especially when the employer has more than 50 employees). The employer may therefore need to curtail retrenchment consultations.


Again, none of these reasons will be accepted by the courts as an excuse for failure to consult fully and properly.

  • When the employer has exhausted every means to locate and contact the union without success, it may consider the possibility of consultation with the employees/ shop stewards directly.



The question arises as to whether the employer should, after being forced to give up on a recalcitrant trade union, consult directly with the employees.  In the case of Numsa v Ascoreg (CLL Vol 12, July 2008) the Labour Court found that the employer could consult directly with the employees when the union refused to consult.


However, the employer will need proof of the union's refusal, as consultation with employees instead of their union is forbidden under normal circumstances.

  • The trade union may be purposely delaying the consultation process.


If a court finds that the union unreasonably delayed the consultation process by making unreasonable demands or failing to participate in consultations, the courts may well refuse to find against the employer, despite the implementation of retrenchments without proper consultations.


In the case of Simelane and others v Letamo Estate (CLL Vol 17, July 2008) the Labour Court found that the trade union has a duty to co-operate and participate in the consultation process.  However, the law clearly gives the employer the onus of ensuring, as far as it possibly can, that proper consultations take place.


Therefore, despite difficulties in getting the union to co-operate, the employer must do everything in its power to do so. It is only where the employer has proved that the union has been unreasonably unco-operative, despite the employer's best efforts, that the courts may excuse the employer for retrenching without consulting the union.


The employer's duty to consult before retrenching lies at the heart of the employer's duty to ensure procedural fairness.  Despite the many different obstacles to the achievement of proper consultations, the employer is likely to find that failure to consult (or to consult properly) is extremely costly from a legal point of view.  On the other hand, where the retrenchments are delayed due to hold-ups in consultations, this could be as costly from a salary bill point of view.


Employers are therefore advised to obtain advice from a reputable labour law expert on:

  • Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 011-888-7944 or e-mail [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