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No disclosure of relevant information, no dismissal for operational requirements

By Siphamandla Dube, an associate in the Labour, Employment and Human Rights department, Fasken Martineau DuMoulin LLP

 

Section 189 of the Labour Relations Act, 1995 regulates the dismissal of employees based on operational requirements.  The section 189 retrenchment procedure was designed as a problem solving process.  This is because the need to retrench is usually not the employee’s fault or within his or her control.  

 

In De Klerk v Project Freight Group CC[1], the Labour Court had to consider what Steenkamp J described as an unusual application for an order by Mr De Klerk to restrain the employer from implementing its decision to dismiss him for operational requirements, pending the resolution of a dispute referred by Mr De Klerk to the CCMA for the disclosure of information in terms of section 16 read with section 189(4)(a) of the LRA. 

 

In the De Klerk case, the parties embarked on a consultation process in terms of section 189 of the LRA and Mr De Klerk was legally represented while the employer was represented by ESOSA, the employers’ organisation.  During the consultation process, Mr De Klerk made a written request for information in terms of section 189(4) of the LRA in respect of the audited financial statements of the employer, the findings of the independent consultants that preceded the appointment of the business rescue practitioner as well as the findings of the business rescue practitioner.  Mr De Klerk sought this information since the employer had cited financial factors for his proposed retrenchment. 

 

Neither the employer nor its representative responded to Mr De Klerk’s request.  Mr De Klerk’s representative again wrote to the employer requesting the information.  The employer eventually responded stating that the company was not prepared to provide him with the requested information as it was not pertinent to the case at hand. 

 

Mr De Klerk’s representative then advised him that he should refer a dispute to the CCMA in terms of section 16 read with section 189(4)(a) of the LRA.  Mr De Klerk subsequently referred the dispute to the CCMA and at the same time sought an undertaking from the employer that, pending the determination of such dispute no further steps would be taken in the retrenchment process.  The employer refused to provide such an undertaking.  Consequently, Mr De Klerk launched this urgent application to restraint the employer from implementing the decision to dismiss him pending the outcome of the CCMA dispute. 

 

Since the application was brought on an urgent basis, Mr De Klerk had to satisfy the requirements for an urgent interdict.  The court found that Mr De Klerk had a clear right to the relief he sought pending the determination of the section 16 dispute by the CCMA and that an injury had actually been committed on the basis that the employer had already given him a notice of his dismissal that would be effective on 31 August 2014.  The employer had also refused to either supply the financial information requested or to give an undertaking not to implement its decision to dismiss him pending the resolution of the CCMA dispute.  Notwithstanding that, Mr De Klerk had an alternative remedy which was to challenge his dismissal were he to be dismissed, but in this case the court found that this was not what he was challenging.  Mr De Klerk was merely asking for the consultation process to be suspended pending the resolution of the CCMA dispute and in that regard he had followed the remedy prescribed by the LRA by referring a dispute to the CCMA.  In the circumstances, the court distinguished Mr De Klerk’s application from usual cases that often clog the urgent court roll where an employee seeks to interdict a disciplinary hearing. 

 

In response to Mr De Klerk’s urgent application, the employer contended that Mr De Klerk was not entitled to refer a dispute to the CCMA.  The employer further argued that the CCMA lacked jurisdiction on the basis that section 16 provided only for the disclosure of relevant information to a trade union representative and that it was only the trade union representative that could refer a dispute to the CCMA.  To contextualise the matter, the court considered the wording of section 16 and section 189(4)(a) of the LRA.  Section 16(2) states that “Subject to subsection (5), an employer must disclose to a trade union representative all relevant information that will allow the trade union representative to perform effectively the functions referred to in section 14(4).”  On the other hand, section 189(4)(a) provides that “The provisions of section 16 apply, read with the changes required by the context, to the disclosure of information in terms of subsection (3).

 

The court accepted the employer’s argument in so far as it relates to the disclosure of information in the context of collective bargaining.  However, the court found that that is not the context in which Mr De Klerk’s application was being heard.  Mr De Klerk’s application was heard in the context of an operational requirements dismissal and a consultation process in terms of section 189.  The court held that in interpreting section 16, one must have regard to the provisions of section 189(4) which state that the provision of section 16 are applicable when read with the changes required by the context. 

 

In this regard, that context was a consultation process in terms of section 189 which was being conducted between the employer and an individual employee.  In this context, section 189(1) compels the employer to consult with the employees likely to be affected by the proposed dismissals or their representative nominated for that purpose if there is no trade union.  Accordingly, the words ‘trade union’ had to be replaced with the word ‘employee’ in the context of operational requirements consultation process. 

 

The significance of this case is that it shows that the employer should be prepared to disclose the relevant information to all employees who could be affected by a retrenchment even if they are not represented by a union.  Furthermore, it cannot be said that the parties are engaged in a meaningful joint problem-solving exercise when the employer simply refuses to provide information that may be relevant for consultation purposes.  A dispute over non-disclosure of information can be used to interdict the employer from proceeding with the dismissals pending resolution of the dispute.  The onus is on the employer to prove that any information that it has refused to disclose is not relevant for the purpose for which it is sought. 

 

For more information, please contact Siphamandla Dube at [email protected]

This article first appeared in the Labour, Employment and Human Rights: Fasken Martineau Bulletin. 

Article published with the kind courtesy of Fasken Martineau  www.fasken.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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