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Ivan Israelstam

 

Due to the fact that some employers are unskilled in dealing both effectively and legally with poor performance or misconduct they look for other ways of getting rid of ‘troublesome employees. However, the law has made it clear that employers must use laid down corrective/disciplinary processes in such cases and are not allowed to misuse other methods such as retrenchments.

 

Many employers cull undesirable employees by declaring jobs redundant and placing the incumbent employees in a ‘redundancy pool’ or ‘redeployment pool’. The employer then requires the pooled employees to apply for vacant posts but turns down the applications of the targeted ‘undesirables’. The practice of ‘pooling’ might succeed if the employer can prove that the pooling and the redundancies are legally justified in the prevailing circumstances, that there are no hidden agendas and that the employees concerned have agreed to the pooling option. However, this approach bears so many pitfalls and is so open to misuse that I strongly advise employers to avoid it.

 

A case that illustrates this point is that of Oosthuizen vs Telkom SA Ltd (2007, 11 BLLR 1013). Ooosthuizen was an engineer with 30 years of service. During a staff cut-back exercise his job was made redundant and he was placed in a redeployment pool with the agreement of his trade union. He then applied for 22 vacancies at Telkom but, although he was short-listed for some of them, he was unsuccessful with all of them. When he was retrenched he claimed that this was unfair as the employer had not consulted with him.

 

The Labour Court found that the employer had no obligation to consult with him as they had consulted with his trade union. The court therefore found the retrenchment to be fair. Oosthuizen therefore appealed to the Labour Appeal Court where it was found/decided that:

  • Employers are obliged not to retrench employees if this can be avoided.
  • The employer had offered to retrain the employees in the redeployment pool but had failed to retrain Oosthuizen.
  • It is unfair to retrench an employee whose job could have been saved via minimal retraining.
  • The employer had brought no evidence as to why the employee had been unsuccessful with his 22 job applications.
  • The fact that the employee had been short-listed for some of the jobs suggested that he had the basic qualifications required for those jobs.
  • In choosing Oosthuizen for retrenchment the employer had applied the criterion of required skills despite having agreed to apply the criterion of LIFO (last-in-first-out).
  • The employer, in deciding to choose the employee for retrenchment had completely ignored his 30 years of service.
  • The above meant that the employee may have been rejected for the vacant posts on arbitrary grounds.
  • The employee had belonged to a trade union and therefore would normally not have been entitled to individual consultations with the employer. However, the employer had conceded that the employee was a manager and the employer’s normal practice was to consult directly with managers on the retrenchment list even if they belonged to a trade union.
  • While the employer had entered into consultations with the employee’s trade union it had failed to consult on the issue of the criteria for deciding which employees should be placed into the redeployment pool.
  • No evidence was led to justify the employer’s decision to require the employee to apply for new positions alongside colleagues with shorter service than his.
  • As a result the retrenchment was procedurally and substantively unfair.
  • The employer was to reinstate the employee with 12 months’ back pay.
  • Should the reinstatement result in an extraneous employee the employer would have to consider retrenching another employee.
  • The employer was required to pay the employee’s appeal costs.

 

This case reinforces the fact that the courts are now placing a much tougher test than ever before on the question as to whether the employer is entitled to retrench employees. This means that hidden agendas are more likely to be uncovered and punished. Before employers consider dismissing employees under any circumstances they should obtain expert advice in order to ensure both effectiveness and legal compliance.

 

lvan lsraelstam is the Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 082 8522 973 or on e-mail address: or www.labourlawadvice.co.za.

 

POPI and consent - don’t get caught in your own net

By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr

 

2020 has given rise to many challenges for employers. The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI.

 

POPI distinguishes between the collection, storage and processing of personal information and special person information. Special personal information includes e.g. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees.

 

It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance.

 

Section 1 of POPI defines consent as “any voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal information”. Written consent is not expressly required. However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. In the circumstances it is advisable for employees’ written consent to be secured.

 

The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed.

 

The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR.

 

In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. The employees must be able to understand in clear language what they are consenting and the extent of the consent. Where necessary provisions should also be made specifically for the processing of special personal information.

 

Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee.

 

Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI.

 

Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. This would cover instances where e.g. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act.

 

An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. While the term “legitimate interest” is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?

 

A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions.

 

So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. In the absence thereof, the employer will need to prepare and secure a further consent from the employee.

 

For more information, please contact Gillian Lumb at

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

 

 

 

 

 

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