Public Newsletter


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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article which looks at 'POPIA in the workplace'. With the July deadline for employers to be compliant with the Protection of Personal Information Act 4 of 2013, we give a broad overview of the Act to understand what is required of employers to implement POPI.

We also discuss three new cases: The first case deals with how a court should go about assessing the lawfulness of affirmative action measures. The second case had to decide whether it was insubordination for an employee to respond forcefully to allegations made by the employer, and what the appropriate sanction should be. The third case, a Labour Appeal Court judgment, considered when reinstatement is not 'reasonably practical'.

This public newsletter is a free edited version of the subscriber newsletter.


Assessing the lawfulness of affirmative action measures

In Ethekweni Municipality v Nadesan and Others (D 1681-17) [2021] ZALCD 1 (3 February 2021) the Labour Court proposed the following practical test to assess the lawfulness of affirmative action measures: Is the decision rational? If the decision is rational, is it unfair when considering internal and external factors? A list of rationality and fairness considerations were identified.

Having found irrationality in the implementation of the employment equity measure, the appeal was dismissed and the CCMA award upheld. We see this judgment as a practical, nuanced and balanced approach to applying affirmative action measures.

Read more (Worklaw subscriber access only)

Insubordination: can an employee respond forcefully to allegations?

In Lucas Dysel Crouse Incorporated v Commission for Conciliation, Mediation and Arbitration and Others (C784/2018) [2021] ZALCCT 3 (19 February 2021) it was held that an employee's wilful flouting of, or refusal to accept, the reasonable and lawful instruction of the employer constitutes misconduct that poses a deliberate and serious challenge to the employer's authority, with the sanction of dismissal reserved for instances of gross insubordination. But an intemperate response to allegations - rather than to instructions - is not the same as wilfully defying an instruction.

An employee of a law firm was dismissed after being found guilty of various charges, including insubordination. At arbitration at the CCMA the arbitrator found that there was no evidence of 'continuous insubordination' which was the description used in the charge. The employee's response to a warning letter was 'probably not the most tactful', but not insubordinate. The arbitrator found that the employer's dismissal of the employee was substantively unfair but procedurally fair, and awarded her nine months' salary amounting to R135,000-00.

The employer took the award on review to the Labour Court. The LC took note that the employee had already been given a final warning for one of offences, which she had rejected out of hand, and that further warnings appeared unlikely to have any meaningful effect. The LC concluded that the employee's dismissal was substantively fair and confirmed the employer's sanction of dismissal.

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When is reinstatement not 'reasonably practical'?

In Booysen v Safety and Security Sectoral Bargaining Council and Others (PA12/18) [2021] ZALAC 7 (30 March 2021) the LAC held that, while there is an onus on an employer who is opposed to reinstating an employee, to lead evidence to show that one of the exceptions to reinstatement applies, the dominant consideration in the enquiry is not on the legal onus but rather on the underlying notions of fairness between the parties. The court or arbitrator ultimately makes a value judgment on the evidence and facts before it.

The employee was employed as a chef by the SAPS in Graaff-Reinet. He was charged with committing a common law or statutory offence, by raping a 16-year old schoolgirl in 2012. The alleged rape took place outside of the employee's working hours. His defence to the charge was that it was consensual intercourse. The SAPS found the employee guilty at an internal disciplinary hearing and dismissed him. He referred an unfair dismissal dispute to the Bargaining Council. The arbitrator made an award upholding the dismissal as substantively and procedurally fair.

The employee challenged the arbitrator's award on review to the Labour Court. The Labour Court found that the appellant's dismissal was substantively unfair as he did not rape the complainant as charged, and that it was more probable than not that the employee had consensual intercourse with the complainant. The Labour Court concluded that a continued employment relationship would be intolerable or not reasonably practical, and awarded compensation of 12 months remuneration.

The appeal to the Labour Appeal Court was limited to the Labour Court's conclusion that the employee was not entitled to reinstatement in section 193(2) of the LRA. The LAC held that the Labour Court was justified in concluding that the continued employment relationship would be intolerable or not reasonably practical, and that an award of compensation as opposed to reinstatement was the appropriate remedy.

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ARTICLE: POPI in the workplace

By Prof Alan Rycroft

POPIA, the Protection of Personal Information Act 4 of 2013, commenced on 1 July 2020, giving employers a 12-month grace period to get their organisations POPI compliant by 1 July 2021. The purpose of this article is to provide Worklaw subscribers with a broad overview of the Act and to understand what is required of them to implement POPI by 1 July.

The Act requires companies which process (collect, store or share) information about individuals to ensure they do so in a way that protects the privacy and security of that information. It also gives the individual more control through the right to submit a query about how their personal information is used by an organization and have that query resolved.

The basic purpose of this Act is to give effect to the constitutional right to privacy by safeguarding personal information when it is being processed. In the workplace the focus is on how an employer gets and retains information about employees.

Read more (Worklaw subscriber access only)


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Bruce Robertson
April 2021
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