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Human resources: The custodian of employment policies, practices and procedures

By Anli Bezuidenhout and Mari Bester, Employment, Cliffe Dekker Hofmeyr

 

In the recent Labour Appeal Court (LAC) decision of National Health Laboratory Service v Yona and Others(PA 12/13) [2015] ZALCPE 32, the LAC considered whether or not it was reasonable for a commissioner to conclude that a human resources manager's arrogant behaviour and "don't give a damn" attitude could lead to a constructive dismissal.

 

Ms Yona (Yona) was employed by the National Health Laboratory Service (NHLS). During 2009, NHLS appointed Yona's subordinate to a position which Yona frequently acted in. Yona felt embarrassed that a subordinate was appointed to a position which she also applied for. According to Yona, her employer humiliated her when it complimented her subordinate's performance during a general staff meeting. The promotion ultimately resulted in Yona being diagnosed with "severe depression and generalised anxiety disorder". Yona fell ill and was continuously absent from work. She submitted medical certificates to cover her entire period of absence from the workplace. She remained absent on sick leave for an uninterrupted period of five months. Despite having been provided with medical certificates confirming Yona's illness, the human resources manager wrote to Yona and alleged that she had failed to communicate the reasons for her absence and that accordingly, her absence would be treated as unpaid leave. When Yona received a salary with a deduction of more than 95% due to leave without pay, she resigned.

 

Yona referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). She alleged that her resignation was inspired by the employer. The CCMA agreed, as did the LAC.

 

Yona bore the onus to prove her alleged constructive dismissal. In considering the matter, the LAC restated the basic principles of a constructive dismissal. A constructive dismissal occurs when an employee resigns from employment under circumstances where they would not have resigned but for the unfair conduct on the part of the employer towards the employee, which rendered continued employment intolerable for the employee. The conduct of the employer toward the employee and cumulative impact thereof must be such that, viewed objectively, the employee could not reasonably be expected to cope with the treatment. Resignation must thus have been a reasonable step for the employee to take in the circumstances.

 

The LAC held that Yona's resignation was a direct sequel to her not receiving the benefits of extended sick leave, which she was entitled to, or at least entitled to apply for. Yona was unfairly denied the opportunity to apply for this benefit by the human resources manager's irresponsible conduct. Furthermore, the LAC held that NHLS, through the human resources manager, failed dismally to accord fair and compassionate treatment to Yona at a time of desperate need because she was suffering from a severe work-related mental illness.

 

This judgment emphasises the fact that a human resources department is responsible for ensuring that the rights and obligations incumbent upon employers and employees are adhered to. Human resources is responsible for employee wellbeing and should promote sound labour relations at all times. In this instance, the LAC expected the human resources manager to explain the policies to the employee and to do more than would be required of any other employee.

 

For more information, contact Anli Bezuidenhout at [email protected] or Mari Bester at [email protected]

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

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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The OHS Act and the Responsibilities of Management

30 September 2021 (08:30 – 16:00)

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

Interactive Online Course

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

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

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

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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)

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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

21 & 22 October 2021 (09:00 - 16:00)

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27, 28 & 29 October 2021 (08:30 - 16:00)

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