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Amongst others the following judgments will be discussed

 

The list include important and most recent Constitutional Court, Labour Appeal Court as well as Labour Court Judgments

(Kindly note this is not a comprehensive list and does not represent all the judgments that will be discussed)

 

2019: Case Law Updates: 15 November 2019: Emperors Palace: Convention Centre

 

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Johannesburg Metropolitan Bus Ser vices (SOC) Ltd v Democratic Municipal and Allied Workers Union and Another (J1799/19) [2019] ZALCJHB 247 (20 September 2019)

The obligation to hold a secret ballot before strike action

 

Masoga and Another v Pick n Pay Retailers (Pty) Ltd and Others (JA14/2018) [2019] ZALAC 59 (12 September 2019)

The interpretation of s200B (Liability for employer’s obligations) of the LRA

 

EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA4/18) [2019] ZALAC 57 (15 August 2019)

The categorisation of a charge sheet

 

Ubuntu Education Fund v Paulsen N.O and Others (PA12/17) [2019] ZALAC 56 (15 August 2019)

Employee on probation dismissed for poor work performance

 

Molehe v Public Health and Social Development Sectoral Bargaining Council and Others (167/2014) [2019] ZALCCT 19 (2 August 2019)

Rigid application of principles such as the distinction between criminal and disciplinary proceedings to be avoided

 

National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others (CC) (28 June 2019)

Derivative misconduct

 

Mushi v EXXARO Coal (Pty) Ltd Grootegeluk Coal Mine (JA62/2018) [2019] ZALAC 44; [2019] 10 BLLR 1134 (LAC) (13 June 2019)

The risk of not following your own disciplinary guidelines

 

Jacobson v VITALAB (JS1042/19) [2019] ZALCJHB 157; (2019) 40 ILJ 2363 (LC) (28 May 2019)

Does s 187(1)(c) apply to individual automatically unfair dismissals?

S 187 (1)(c) “a refusal by employees to accept a demand in respect of any matter of mutual interest between them and the employer”

 

Naidoo and Another v Standard Bank SA Ltd and Another (J1177/19) [2019] ZALCJHB 168; [2019] 9 BLLR 934 (LC) (24 May 2019)

Resignation with immediate effect to avoid disciplinary action

 

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Ndzimande and Others v Didben N.O and Others (JR 1404/14) [2019] ZALCJHB 73 (2 April 2019)

Making false statements about the employer to the media

 

National Union of Metalworkers of South Africa (NUMSA) obo members and Aveng Trident Steel (A division of Aveng Africa (Pty) Ltd) (2019) (Aveng) (13 June 2019)

Can employees be dismissed for refusing to accept an employer's proposal in respect of the change to conditions of employment?

 

Prabashnie Naicker v Africa Flight Services, JR 843/17 (21 May 2019)

Whether an act of insubordination justified dismissal, excluding the supervisor in email communication

 

Steenkamp and Others v Edcon Limited (CCT29/18) [2019] ZACC 17; 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC) (30 April 2019)

Compensation in terms of Large-scale retrenchments as a remedy for procedural unfairness

 

Comair Ltd v National Union of Metal Workers of South Africa and Others (J891/19) [2019] ZALCJHB 74; [2019] 8 BLLR 812 (LC) ; (2019) 40 ILJ 2076 (LC) (25 April 2019)

Strike related equal pay for equal work

 

Mahle BEHR SA (Pty) Ltd v NUMSA and Others ; FOSKOR (Pty) Ltd v NUMSA and Others (D448/19;D439/19) [2019] ZALCD 2; (2019) 40 ILJ 1814 (LC) (20 March 2019)

The effect of the transitional provisions related to the secret balloting provision (s19 of the LRA)

 

Autozone v Dispute Resolution Centre of Motor Industry and Others (JA52/2015) [2019] ZALAC 46; [2019] 6 BLLR 551 (LAC); (2019) 40 ILJ 1501 (LAC) (13 February 2019)

Breakdown in the trust relationship

 

Solidarity obo Barkhuizen v Laerskool Schweizer-Reneke and Others (J44/19) [2019] ZALCJHB 90; (2019) 40 ILJ 1320 (LC); [2019] 7 BLLR 725 (LC) (24 January 2019)

Suspension on allegations of racism

 

Calgan Lounge (Pty) Ltd v National Union of Furniture & Allied Workers of SA & others (2019) 40 ILJ 342 (LC)

Involvement of political party in the instigating and driving of strike – political party has no locus standi in the workplace

 

Sun International Limited v SACCAWU obo Rebecca Ramer afe and Others (JR1501/17) [2019] ZALCJHB 31; [2019] 7 BLLR 733 (LC); (2019) 40 ILJ 1873 (LC) (26 February 2019)

Equal pay for equal work

 

Legal Aid South Africa v Mayisela and Others (CA9/17) [2019] ZALAC 1; [2019] 5 BLLR 421 (LAC); (2019) 40 ILJ 1526 (LAC) (5 February 2019)

 

National Union of Metalworkers of South Africa obo Baloyi and Others v O-Line (Pty) Ltd (2019) 28 CCMA the Commission for Conciliation, Arbitration and Mediation (“CCMA”)

 

False allegations of racism may result in dismissal

 

Long v South African Breweries (Pty) Ltd and Others; (CCT61/18) [2019] (19 February 2019)

Precautionary suspension: Whether it is necessary to hold a pre suspension hearing

 

Anglo Gold Ashanti and others v AMCU & others [2019] JOL 41788 (LC)

The requirements for a valid secondary strike in terms of s66 of the LRA

 

TMT Services & Supplies (Pty) Ltd v CCMA & others (2019) 40 ILJ 150 (LAC)

Misconduct (Insubordination)

 

TFD Network Africa (Pty) v Faris (2019) 40 ILJ 326 (LAC)

Refusal to work on Saturdays because of religious beliefs

 

Solidarity and Another v Armaments Corporation of South Africa (SOC) Ltd and Others [2019] 3 BLLR 248 (LAC)

Dismissal for Incapacity

 

Mthembu and Others v NCT Durban Wood Chips [2019] 4 BALR 369 (CCMA)

Testing positive for cannabis at work

 

South African Commercial, Catering and Allied Workers Union and Others v Woolworths (Pty) Limited (CCT275/17) [2018] ZACC 44; (2019) 40 ILJ 87 (CC) ; 2019 (3) BCLR 412 (CC); [2019] 4 BLLR 323 (CC); 2019 (3) SA 362 (CC)

Labour Relations Act — section 189A(19) — retrenchment — dismissal for operational requirements

 

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Imvula Quality Protection (Pty) Ltd and Others v University of South Africa (JA122/2017) [2018] ZALAC 33; [2018] 12 BLLR 1151 (LAC); (2019) 40 ILJ 104 (LAC)

S197 Transfer of Business

 

National Union of Mineworkers and Others v Anglo Gold Ashanti Limited and Another (J3627/18) [2018] ZALCJHB 385; [2019] 1 BLLR 54 (LC); (2019) 40 ILJ 407 (LC)

Section 197(6) of the LRA

 

Other Updates

  • Legal practitioners’ right of appearance at the CCMA

  • New EEA Form Issued in terms of the Employment Equity Act

  • Load shedding and the obligation of the employer

  • Paternity Leave

  • National Qualifications Framework (NQF Amendment Act) Amendment Act 12 of 2019: Fraudulent qualifications

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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

 

                   

The OHS Act and the Responsibilities of Management

30 September 2021 (08:30 – 16:00)

Interactive Online Course

Employment Equity Committee Training

30 September 2021 (09:00 - 16:00) (Fully Booked)

Interactive Online Course

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

Interactive Online Course

Managing Day to Day Issues/ Problem Employees Full day workshop

01 October 2021 (09:00 - 16:00) (Fully Booked)

Interactive Online Course

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

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

01 October 2021 (08:30 - 16:00) (Fully Booked)

Interactive Online Course

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

Interactive Online Course

Basic Labour Relations

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

Interactive Online Course

AARTO and the Impact on Your Business

08 October 2021 (09:00 - 12:00)

Interactive Online Course

POPIA: Protection of Personal Information Act

15 October 2021 (09:00 - 12:00)

Interactive Online Course

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

Health and Safety Representative and Committee Training Course

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

Interactive Online Course

Managing Poor Performance/ Incapacity

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

Interactive Online Course

Management and Leadership Skills

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

Interactive Online Course

 

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