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Employers have to be careful when cancelling job contracts

By Ivan Israelstam

         

The courts have found that an employee is considered to be fully employed and therefore protected under labour law legislation from the moment the employment contract is concluded even if the employee has not yet actually started work. This applies even if nothing has been put into writing or signed, and the contract of employment has only been verbally agreed between the two parties.

              

According to section 213 of the Labour Relations Act an employee is:

              
"(a) any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration; and
"(b) any other person who in any manner assists in carrying out or conducting the business of an employer."
                    
This definition strongly implies that the employer's legal obligations begin only on the day the employee physically starts working. But this is not necessarily so. For example, in the case of Wyeth SA (Pty) Ltd v Manqele, Manqele was offered a position as sales representative by the employer.
                       
The parties concluded a written contract of employment according to which he was to start work at the employer's premises on April 1. Before Manqele started working, he was informed that the employer was no longer prepared to employ him. In terms of the contract of employment, among other things, Manqele had been entitled to a company vehicle. The employer believed that Manqele had made a misrepresentation as to the status of the car he had chosen.

              

Because of this, the employer took the view that there was no contract between the two parties. The employer reasoned that this was because they had reached agreement as to the condition of the motor vehicle stipulated in the letter of appointment. Manqele took the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA), and the arbitrator ruled that Manqele had become an employee the moment he accepted Wyeth's offer of employment.

                  

Wyeth then took the arbitrator on review at the Labour Court on the grounds that the arbitrator had arrived at an "unjustifiable conclusion in ruling on the definition of an employee". Wyeth argued in the Labour Court that Manqele had not actually started working for it and that he did not become an employee merely because of the employment contract. This argument is supported by an earlier Labour Court finding in the case of Whitehead v Woolworths (Pty) Ltd (1999 20 ILJ 2133).

                         

In that case, the Labour Court found, according to the report, that a person who is party to a contract of employment but who has not yet started working is not an employee for the purposes of the Labour Relations Act. However, despite the finding in the Whitehead v Woolworths case, in the Manqele case the Labour Court found that, as a party to a valid and binding contract of employment, Manqele was an employee for the purposes of the Labour Relations Act.

              

The employer recently took the matter further to the Labour Appeal Court but, yet again, the finding that Manqele was an employee was upheld. The Labour Appeal Court upheld the earlier decisions by the CCMA and Labour Court that Manqele had achieved legal employee status the moment his employment contract was signed.

                       

This decision raises a number of issues that should be of concern to employers: 

  • First, the fact that two different benches of Labour Court judges (hearing the Woolworths case on the one hand and Wyeth case on the other) made two such diametrically opposed decisions on a matter as fundamental as this one creates major uncertainty about the law in this regard;
  • Second, employers are now clueless about whether they can cancel employment contracts before a person starts working; and
  • Third, where the parties have agreed in principle that the employee will get the job, it is now unclear whether a disagreement on the terms of the employment does or does not delay the legal validity of the contract of employment.

                   

In the light of these dangers, employers should:

  • Avoid entering into employment agreements until all the terms and conditions have been dealt with thoroughly;
  • Ensure that, before offering anybody a job, there are no obstacles to allowing the candidate to take up the position;
  • Make it clear that the discussion of the terms and conditions of a contract in no way constitutes an offer of employment; and
  • Never employ, contract with or cancel the employment contract of any person without involving a labour law expert experienced in dealing with these tricky issues.

                               

Ivan Israelstam is chief executive of Labour Law Management Consulting. Call him at 011-888-7944, e-mail [email protected]
Our appreciation to Ivan and The Star newspaper for permission to publish this article…

 

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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Employment Equity Committee Training

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

Interactive Online Course

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

Interactive Online Course

Managing Day to Day Issues/ Problem Employees Full day workshop

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

Interactive Online Course

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

Interactive Online Course

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)

Interactive Online Course

Basic Labour Relations

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

Interactive Online Course

AARTO and the Impact on Your Business

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

Interactive Online Course

POPIA: Protection of Personal Information Act

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

Interactive Online Course

Workshop Chairing Disciplinary Hearings

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

Interactive Online Course

Strategic Human Resources Management (HRM) and - Business Partnering

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

Interactive Online Course

Health and Safety Representative and Committee Training Course

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

Interactive Online Course

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

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