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Advocate Estelle Botha

 

Fixed term contracts are often used in the labour field for different reasons. Sometimes employees are needed on a project for a specific time period or a position is only available for a time, for instance where an employee is on maternity leave. In the building industry fixed term contracts could be terminated at the arrival of a specific event, for instance a plasterer's contract will terminate if that portion of the project is finalised.

  

These contracts come to a natural end at the time stipulated in the contract or at the arrival of a specific event, when the employee's services will terminate. That is then the end of the relationship. The question arose whether a fixed term contract may be terminated before the specified date of termination in the contract. The common law rule is that such a contract may not be terminated for any other reason than material breach or repudiation of the contract by the employee.  In other words the employee may resign before the date of termination, or if the employee is found guilty of serious misconduct and dismissed, which will mean the employee was in breach of the contract.

 

The employer may not terminate the contract before the time. The reason for this rule is that parties bind themselves in the contract for a specific time period and the commitment should be honoured. Recently in two cases,  the Labour court had to determine this issue again. In NKOPANE & OTHERS v INDEPENDENT ELECTORAL COMMISSION (2007) 28 ILJ 670 (LC) the IEC needed to retrench a number of employees as there were no work for them.

  

Their letters of appointment stated that they were employed on contract for "two to three years".  Later the parties agreed upon termination dates. The court found that these were fixed term contracts and that the IEC could not terminate them before the end of the term. The court confirmed the common law rule.

 

In NATIONAL UNION OF METALWORKERS OF SA & OTHERS v SA FIVE ENGINEERING (PTY) LTD & OTHERS (2007) 28 ILJ 1290 (LC), employees were contracted to reconstruct and refit a ship.  The project had specific stages and was by nature, of a limited duration. The employees were employed for limited periods. The contracts of employment were vague as it had no specific dates of termination, but the time of termination was linked to a specific event. The employees argued that all their contracts should have been terminated at the completion of the project.

 

The employer argued that their tasks for which they were employed were completed and therefore they needed to be retrenched. The court found that the termination of these fixed term contracts were not unfair because the tasks were completed and there was no further work for them. The difference in findings of the court in these two cases is based on the facts of the matter.  In the IEC case there were specific dates to which the parties committed themselves.

 

If the employer had no further work for the employees it had only one option and that is to pay out the remainder of the contract.  In the NUMSA case there was no commitment to a specific date but rather that the contracts would automatically terminate upon the completion of each employees task for which they were appointed.

 

The principal remains that fixed term contracts cannot be terminated prior to the date agreed upon unless there is material breach or repudiation of the contract.  The wording of these contracts should be looked at carefully.

 

For more information contact [email protected]

 

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

 

                   

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

Compensation for Occupational Injuries and Diseases Course

25 November 2021 (08:30 - 16:00)

Interactive Online Course

POPIA: Protection of Personal Information Act

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

Interactive Online Course

 

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