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Promotion – Don’t promise what you cannot deliver

By Ivan Israelstam

 

Financial constraints not an excuse for failing to promote employees already recommended for promotion

 

Employees have different reasons for wishing to be promoted. They want the increased remuneration that goes with it, they want the status, the feeling of success and recognition and/or the challenge of the higher level responsibility.

 

Despite these aspirations, employees do not have an unfettered and automatic right to be promoted. Were such an automatic right to exist this would place an unfair and impossible burden on employers. However, where certain circumstances exist employees may have a legal right to be promoted. (Often such circumstances need to exist in combination but this will not always be the case) For example:

 

  • The employer orally promises the employee a promotion

 

  • The employer signs an agreement that says that the employee will be promoted. Such a clause could exist in the employment contract signed when the employee was originally appointed.

 

  • A signed agreement obliges the employer to promote the employee provided that a certain potential event takes place and that event does take place. For example, this potential event could be that:

 

    • The employee’s superior vacates his/her position for any reason including promotion, retirement, resignation, dismissal etc.

 

    • The employee ‘proves himself/herself’

 

    • A particular period of time elapses

 

    • A suitable vacancy arises

 

    • A potential new customer places a large order

 

    • A new workshop is opened.

 

  • A vacancy is advertised, an internal employee applies for it and is legitimately recommended as the most suitable person for the job.

 

For example in the case of Mokhobo and others vs Department of Education (2005, 8 BALR 836) the employees applied for posts advertised within the Department. Despite the fact that these employees were recommended for the posts they were not promoted. At the CCMA the employer maintained that there were insufficient funds to finance the cost of the promotions and that a moratorium had been placed on appointments. The employees maintained that they had a legitimate expectation that they would be promoted. The arbitrator found that:

 

  • It was not relevant that the employees had legitimate expectations of promotion

 

  • No moratorium had been in place at the time that the employees had been  recommended for the promotions

 

  • The shortage of funds was an insufficient reason not to promote the employees as they had already been recommended for promotion

 

The CCMA therefore ordered the employer to promote the employees in question retrospectively and to pay them compensation.

 

It is alarming for employers that, despite the fact that the Department’s lack of funds had not been disputed by the CCMA arbitrator, this fact was insufficient to persuade the arbitrator to find in its favour. This means that, even where an employer cannot afford to promote employees, it may be forced to do so if the employees have already been recommended for promotion.

 

In view of this employers are advised:

 

  • Not to advertise posts if they are unable to fund the payment of the incumbents

 

  • To make sure that those officials/managers authorised to recommend employees for promotion are competent to do so on a purely objective basis.

 

Employees are advised not to raise promotion related disputes merely because they have expectations of promotion.

 

Ivan Israelstam is the Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 082 852 2973 or on e-mail address: [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]

 

 

 

 

 

 

 

 

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

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Compensation for Occupational Injuries and Diseases Course

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

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Basic Labour Relations

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

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AARTO and the Impact on Your Business

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

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POPIA: Protection of Personal Information Act

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

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Workshop Chairing Disciplinary Hearings

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