Home

 

 

Due to the significant rise in the number of retrenchments, we have decided to make DVD: How to deal with retrenchments available free of charge

 

 

Retrenchments - Back to Basics

By Jan du Toit

 

Nobody can argue that this year was economically a very challenging year with lots of fatalities in term of job losses. Many employers decided to close shop because of the economic climate combined with the impact of the extended industrial action in the mining industry and transport sector.

 

Looking at the questions that are asked by employers and employees regarding retrenchments, there clearly seems to be a lack of understanding of the rights of employees in terms of section 189 / 189(a) of the Labour Relations Act as well as the Basic Conditions of Employment Act. Some employers are under the impression that retrenching an employee is as simple as issuing a notice of termination of the employment relationship based on the operational requirements of the company. Another common mistake is to selectively nominate “problem” employees for retrenchment instead of using a fair selection criteria such as the LIFO (Last In First Out) principal recommended by LRA.

 

For these employers there may be a nasty surprise in the near future because a retrenched employee may refer his / her dismissal to the CCMA or to the labour court if more than one employee was retrenched. Compensation of up to 12 months of the employee’s normal remuneration may be awarded for not following a fair procedure and / or retrenching for a fair reason (procedural and substantive fairness).

 

In order to ensure fairness towards both employer and employee, it is necessary to better understand section 189 of the Labour Relations Act.

 

When may an employer retrench employees?

Employers may dismiss employees based on their operational requirement as defined in section 213 of the Labour Relations Act. "Operational requirements" means requirements based on the economic, technological, structural or similar needs of an employer.

 

It must be remembered that the onus will be on the employer to prove that a genuine operational requirement existed. The employer cannot merely claim that for instance the company was not making money and as such had to retrench employees; the employer will have to produce evidence of such a financial crisis.

 

How to dismiss employees based on the operational requirements of the employer?

Section 189 of the Labour Relations Act is applicable and prescribes a joint consensus seeking process in an attempt to reach consensus on appropriate measures (section 189(2)) -

  • to avoid the dismissals;
  • to minimise the number of dismissals;
  • to change the timing of the dismissals; and
  • to mitigate the adverse effects of the dismissals;
  • the method for selecting the employees to be dismissed; and
  • the severance pay for dismissed employees.

 

Who must the employer consult with (section 189(1))?

The employer must consult with one of the following parties, starting at the top of this structure moving down until the appropriate consulting party has been identified -

  • any person whom the employer is required to consult in terms of a collective agreement;
  • if there is no collective agreement that requires consultation

-     a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; and

-     any registered trade union whose members are likely to be affected by the proposed dismissals;

  • if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; or
  • if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.

 

What information must be disclosed to affected employees (section 189(3))?

The employer must issue a written notice inviting the other consulting party to consult with it and disclose in writing all relevant information, including, but not limited to-

  • the reasons for the proposed dismissals;
  • the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives;
  • the number of employees likely to be affected and the job categories in which they are employed;
  • the proposed method for selecting which employees to dismiss;
  • the time when, or the period during which, the dismissals are likely to take effect;
  • the severance pay proposed;
  • any assistance that the employer proposes to offer to the employees likely to be dismissed;
  • the possibility of the future re-employment of the employees who are dismissed;
  • the number of employees employed by the employer; and
  • the number of employees that the employer has dismissed for reasons based on its operation requirements in the preceding 12 months.

 

The employer must allow the other consulting party an opportunity during consultation to make representations about any matter dealt with above, as well as any other matter relating to the proposed dismissals. The employer must consider and respond to the representations made by the other consulting party and, if the employer does not agree with them, the employer must state the reasons for disagreeing. If any representation is made in writing, the employer must respond in writing.

 

How long does this process take?

The duration of the joint consensus seeking process entirely depends on the circumstances such as the reason for the contemplated dismissals, the complexity of the information disclosed and the number of employees affected. Normally on average such a process takes between two and three weeks.

 

We employee more than 50 employees and contemplate dismissing at least 10 employees based on the company’s operational requirements.

In such instances the employer will have to follow the steps outlined in section 189A of the Labour Relations Act. For the purpose of this article I am not going to discuss section 189 A. The most important points to remember are that:

  • Timeframes are prescribed. The employer may effectively not take a decision to dismiss during the first 30 days, or give notice of termination of employment before 60 days lapsed.
  •  Employees have the right to strike or to refer the matter to the Labour Court once notice has been given by the employer.
  •  

How do I select employees to be retrenched?

Selection criteria that are generally accepted to be fair include length of service, skills and qualifications. Generally the test for fair and objective criteria will be satisfied by the use of the "last in first out" (LIFO) principle. There may be instances where the LIFO principle or other criteria needs to be adapted. The LIFO principle forexample should not operate so as to undermine an agreed affirmative action programme. Exceptionsmay also include the retention of employees based on criteria mentioned above which are fundamental to the successful operation of the business. These exceptions should however be treated with caution.

 

What alternatives to a dismissal may be raised by affected employees?

Again this entirely depends on the circumstances. These are some suggestion that may be made by affected employees in order to save or make more money instead of having to retrench them. The employer must consider these suggestions and communicate back to the affected employees the reasons for rejecting the suggestions. The most common mistake made by employers is to not consider alternatives suggested by the affected employees. It must be remembered that the primary purpose of the joint consensus seeking process is to avoid dismissals and the employer must as such be open to workable alternatives. The dismissal of an employee could be found to be substantively unfair if a reasonable and workable suggestion as alternative to a dismissal was made but the employer outright rejected such a suggestion without justification.

  • 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
  • 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

 

How much severance pay?

Employees are entitled to 1 week’s severance pay for each completed and continuous year of service with the same employer. The employer does not have to pay severance pay if an employee unreasonably refuses to accept an offer of employment with the current employer or another employer (sections 41(2), 41(4) of the Basic Conditions of Employment Act).

 

It must be remembered that severance pay for employees that fall under the scope of a bargaining council such as the MEIBC or MIBCO may be different to the minimum prescribed by the BCEA.

 

How is severance pay calculated?

According to the determination issued by the Minister of Labour in Government Notice 691 of 2003 the following payments are included in an employee's remuneration for the purpose of calculating severance pay:

  • housing or accommodation allowance or subsidy; or housing or accommodation received as a benefit in kind. Any housing or accommodation allowance or subsidy paid in cash, or the value thereof if paid in kind, is deemed to be part of remuneration.
  • car allowance or the value of provision of a company car.       This does not apply in those instances where the employer provides a vehicle to the employee so as to allow the employee to travel to and from work, with no other private usage of the vehicle by the employee.
  • any cash payments made to an employee, except those listed as exclusions in 2 below.
  • employer's contributions to medical aid, pension, provident or similar funds or schemes, must be considered as part of the employee's remuneration and must be included when making calculations in terms of this notice.
  • employer's contributions to funeral or death benefit schemes also form part of remuneration and must be included in the calculation of remuneration.
  • The following items do not form part of the employee's remuneration for the purpose of these calculations:

-       any cash payment or payment in kind that is provided in order to enable the employee to work (for example, equipment, tools or a similar allowance, or the provision of transport or the payment of a transport allowance to enable the employee to travel to and from work only.

-       a relocation allowance

-       gratuities, for example tips received from customers, and gifts received from the employer.

-       share incentive schemes.

-       discretionary payments not related to the employee's hours of work or performance, for example a discretionary profit-sharing scheme.

-       an entertainment allowance

-       an education or schooling allowance.

  • The value of payments in kind must be determined as follows.

-       a value agreed to in either a contract of employment or collective agreement, provided that the agreed value may not be less than the cost to the employer of providing the payment in kind; or

-       the cost to the employer of providing the payment in kind.

-       (Employers who provide accommodation to the employees, or any other benefits in kind, are advised to enter into a written agreement with the employee regarding the value of the accommodation or other benefits provided in kind.)

  • An employee is not entitled to a payment or the cash value of a payment in kind as part of remuneration if:

-       the employee received the payment or enjoyed, or was entitled to enjoy, the payment in kind during the relevant period.

-       in the case of a contribution to a fund or scheme that forms part of the remuneration, the employer paid a contribution in respect of the relevant period.

  • If the payment fluctuates, it must be calculated over a period of 13 weeks or if the employee has been in employment for shorter period, over that period.
  • A payment received in a particular period in respect of a longer period (e.g. a 13th cheque) must be calculated pro rata.
  • This schedule applies only to the minimum payments that an employer is required to make in terms of the Basic Conditions of Employment Act, 1977.

 

It should be noted that where the employee's remuneration fluctuates regularly, the calculation of payment for annual leave must be based on the employee’s average earnings for the previous 13 weeks. The average will of course, include commission and or overtime paid for.

 

Tax implications

Where, on dismissal or retrenchment, an employee is entitled to an amount which refers to the period that the employer is obliged to give the employee notice of such termination of service, in other words, the employer pays the employee an amount equal to the salary the employee would have earned if such employee had worked for the full notice period, the amount (notice pay) will not qualify for the exemption in terms of Sections 7A(4A) or 10(1)(x) of the Income Tax Act.

 

Any amount in cash or in kind, received by or accrued to an employee or the holder of any office by way of bonus, gratuity or compensation (including payment for accumulated leave and redundancy payment) because of the termination of his / her services is exempt from tax to the extent of a cumulative amount of R30 000 provided that the termination or impending termination of such person’s services is due to superannuation, ill-health or other infirmity or the termination of the person’s services is as a result of the employer having ceased trading or where he / she has affected a general reduction in personnel or a reduction in personnel of a particular class.

 

Questions asked by some of our subscribers:

Q. We have been given a “voluntary retrenchment" agreement for those of us that would prefer to take advantage of the retrenchment package that is offered if we sign such a letter.   I would like to know if one can still draw unemployment if we sign.

A. Yes as long as the employee can prove that the employer initiated the voluntary offer.

Q. Must I be given notice of termination of employment and must such notice be paid?

A. Yes, retrenchments are “no fault” dismissals. It is not the fault of the employee that the company cannot afford the salary of the employee anymore and as such notice periods agreed upon must be honoured. The employer may ask the employee not to return to work but must then pay the notice period.

Q. What about my annual leave in the event that I am retrenched?

A. Accumulated annual leave must be paid out.

Jan du Toit is available to assist employers with retrenchments as well as with disciplinary enquiries and CCMA matters. His email address is  

 

 

 

 

The Protection of Personal Information


By Jan du Toit, Senior Consultant, SA Labour Guide

 

After more than seven years in the making, President Ramaphosa announced last year an effective date of 1 July 2020 for the Protection of Personal Information Act (POPI), Act 4 of 2013. “Responsible Parties” only have approximately 5 months left until 30 June 2021 to become compliant in full.

 

The duration of a typical POPI compliance project will differ from one business to another depending on the nature and size of the business, as well as the Personal Information processed by a Responsible Party. Business owners are therefore advised to, without delay, embark on a compliance project to meet the deadline.

 

Even though the Protection of Personal Information Act is welcomed by most, it has been long overdue and will require business owners (“Responsible Parties” in terms of the Act) to process Personal Information according to 8 processing conditions as set out in the Act.

 

The purpose of the Protection of Personal Information Act is in essence found in the title of the Act; to protect the Personal Information of “Data Subjects”. It gives effect to ones right to privacy as enshrined in the Constitution but also provides balance in terms of the right to privacy weighed up against the right to access to information.

 

The Act regulates the manner in which Personal Information must be processed and provides protection and recourse to those whose rights are infringed. Further to this, the Act makes provision for the establishment of an Information Regulator. Advocate, Pansy Tlakula has already been appointed as the Information Regulator a couple of years ago and has done a great deal of work in establishing her office.

 

Before I get into more detail about the eight processing conditions, it is important to note that the Act is “definitions driven”. It is therefore of utmost importance to first highlight some of the definitions found in the Act for readers to better understand the eight processing conditions.

 

The first definition is that of “Personal Information”. Personal Information is widely defined in the Act and includes, but is not limited to, information relating to an identifiable living natural person or a juristic person (“Data Subjects”), such as:

  • Race, gender, sex, pregnancy, marital status, nationality, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, believe, culture, language, birth

  • History - education, medical, financial, criminal, employment

  • Identifiers – number, symbols, e-mail address, physical address, telephone numbers, location, online ID or other assignment to a person such as a unique identifier (in example a student or patient number)

  • Biometric information – physical or psychological behavioural characterization, blood type, fingerprints, DNA analysis, retinal scanning, voice recognition

  • Personal opinion views or preferences

  • Correspondence implicitly or explicitly of a private and confidential nature

  • Views or opinions of another individual\

  • The name of the person with other information or the name alone

 

The second definition of importance is that of “processing”. The processing of Personal Information includes but is not limited to any operation/activity or any set of operations, whether automated or not, concerning Personal Information. It includes:

  • Collection / receipt / recording / organizing / collation / storage / updating / modification / retrieval / alteration of Personal Information

  • Dissemination by means of transmission distribution or making available to others.

  • Merging / linking / restricting / degradation / erasure / destruction of Personal Information.

 

A Responsible Party can either be a public body, private body or any other person or persons, domiciled in South Africa and that determines the purpose and means for processing of Personal Information.

 

Throughout the entire lifecycle of Personal Information in any business, eight processing conditions must be adhered to. The eight processing conditions are summarized below:

 

Condition 1 – Accountability. The Responsible Party must always ensure that the conditions set out in Chapter 3 of the Act and all the associated measures are complied with.

 

Condition 2 – Personal Information must be collected and processed lawfully in a reasonable manner that does not infringe the privacy of a Data Subject. The Personal Information may only be processed if it is adequate, relevant, and not excessive.
Personal Information may only be processed if the Data Subject consented thereto. Alternatively, where it is necessary to do so for the conclusion or performance of a contract, an obligation in terms of law, to protect the legitimate interest of the Data Subject, or to pursue a legitimate interest of the Responsible Party.

 

A further requirement is that the Personal Information must be collected directly from the Data Subject.

 

Condition 3 requires that Personal Information must be collected for a specific explicitly defined and lawful purpose related to a function or activity of the Responsible Party. Such Personal Information may not be retained any longer than necessary for achieving the purposes for which the information was collected and/or subsequently processed.

 

Condition 4 prohibits the further processing of Personal Information unless such processing is compatible with the initial purpose of collecting the information.

 

Condition 5 requires that Responsible Parties must take reasonable, practicable steps to ensure that Personal Information is complete, accurate, and not misleading. Such Personal Information must also be kept up to date, taking into consideration the purpose of the Personal Information.

 

The nature and purpose of the Personal Information will dictate as to how often such Personal Information must be updated.

 

Condition 6 addresses some of the rights of Data Subjects, such as the right to be informed by the Responsible Party before information is collected. The purpose of collecting and from where Personal Information will be collected must be disclosed to the Data Subject.

 

A Data Subject is entitled to the details of the Responsible Party and to be made aware of the consequences of not making Personal Information available to the Responsible Party.

 

Should it be required that Personal Information be collected and processed in terms of legislation, the Data Subject must be made aware accordingly.

 

As per Section 72 of the Act, the Data Subject must be advised if Personal Information will be transferred across the borders of South Africa. Under such circumstances the Data Subject is entitled to first be made aware of legislation in other countries that provides adequate protection of the Personal Information. In the absence of legislation, whether there are any binding corporate rules in place, alternatively a written agreement that offers adequate protection for the Data Subject, concluded between the Responsible Party and he third party.

 

Condition 7 requires that Responsible Parties must secure the integrity and confidentiality of Personal Information by taking appropriate reasonable, technical and organisational measures, to prevent loss or unlawful access of Personal Information under the control of a Responsible Party.

 

In this regard the Responsible Party is required to identify all reasonable and foreseeable internal and external risks, and to establish and maintain appropriate safeguards. Compliance with such safeguards must be regularly audited and measures updated if so required.

 

Condition 8 deals with the rights of Data Subjects and participation. In terms of condition 8, Data Subjects have the right to establish whether Personal Information is held by a Responsible Party and to have it corrected or destroyed if it is inaccurate, irrelevant, excessive, out of date, incomplete, misleading, or have been obtained unlawfully.

 

Responsible Parties are also further required to introduce Data Subject rights and participation in their PAIA (Promotion of Access to Information Act) manuals.

 

Responsible Parties are also not permitted to send direct marketing material to Data Subjects without their written consent as per from 4 four of the regulations of the Act.

 

Other important considerations in terms of the Act are that a Responsible Party may be issued with an administrative fine of up to R10 million for its non-compliance with the Act. Additionally, Data Subjects have the right to sue Responsible Parties and under specific circumstances, the Information Officer of the Responsible Party may be imprisoned.

 

Each Responsible Party must register an Information Officer (the head of the organization or a person acting in such capacity) with the Information Regulator. The Information Officer may appoint deputies to assist with ensuring compliance within the business.

 

From the above, it is evident that a POPIA compliance project is not something that should be undertaken without a solid understanding of the Act.

 

Our subscribers, a.k.a. “Responsible Parties”, are invited to attend our online POPIA presentations to better understand the Act and to ensure compliance. In-house training can also be arranged on request.

 

The author of this article is also available to assist employers with compliance projects in the form of awareness sessions, gap analysis, policy development / implementation and staff awareness.

 

For further information pertaining to training, readers are invited to visit www.labourguide.co.za or to contact Jan du Toit at .

 

 

 

 

 

Courses and Workshops

 

                   

 

COVID-19 Workplace Compliance Health, Safety and Claims Management Course

11 & 12 March 2021 (08:30 - 13:00)

Interactive Online Course 

AARTO and the Impact on Your Business

12 March 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

09 April 2021 (09:00 - 12:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

12 March 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

26 March 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

25 March 2021 (09:00 - 12:00)

Interactive Online Course 

Employment Equity Committee Training

17 March 2021 (09:00 - 16:00)

Interactive Online Course

Basic Labour Relations

18 March 2021 (09:00 - 16:00) (Fully Booked)

Interactive Online Course

08 April 2021 (09:00 - 16:00)

Interactive Online Course

POPIA: Protection of Personal Information Act

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

Interactive Online Course

Management and Leadership Skills

24, 25 & 26 March 2021 (08:30 - 16:00)

Interactive Online Course

Incident Investigation of Work-Related Injuries and Diseases Course

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

Interactive Online Course

The OHS Act and the Responsibilities of Management

08 April 2021 (08:30 – 16:00)

Interactive Online Course

 

 Our Clients 

 

Android App On Google Play

Android App On Google Play