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July 22, 2020

Employment rights under lockdown


What happens if a business is forced to close because of Covid-19 and it becomes impossible for an employer and employee to perform under an employment contract? The law states that if both employer and employee are unable to do so, then the obligations of both parties are suspended, until the lockdown ends, and it becomes possible for work to continue.

 

Before Covid-19, South African employment law and labour courts generally found that the employer had to pay an employee a salary even when the employee did not render services, e.g. in war conditions, where the free movement of employees was restricted.

 

Now, under the current government-imposed lock-down and limitation of economic activity, employees are restricted from movement unless working in enterprises which are recognised as essential or providing permitted services.

 

If the employer is not such an enterprise, the employee is placed on temporary lay-off, or unpaid leave. To assist vulnerable workers, who are subject to a temporary lay-off, resulting from the lockdown, the South African government has made R500 billion available, through schemes such as the Temporary Employee Relief Scheme, administered by the Unemployment Insurance Fund.

 

If an employer is obliged to trim its workforce because it has become impossible to operate, if it seeks to dismiss any employee, it must still ensure that any dismissal is fair and must follow due process laid down by our employment laws.

 


July 15, 2020

Does the estate of a deceased grandparent have an obligation to support a grandchild?

 



Phillipa Susan van Zyl NO v Getz (548/19) [2020] ZASCA 84 

The mother of a child asked the Supreme Court of Appeal (SCA) for a ruling obliging the estate of a grandparent of her child to maintain the child. 

Both parents were alive. The mother could not afford to maintain the child and the father had moved to the United States. No serious steps were taken to find him and establish his financial means. 

Two common law rules govern the legal duty of support of grandchildren by grandparents. The first basic rule provides that where a grandchild is in need of support, his or her grandparent will have a legal duty to maintain him or her, only if both parents are unable to support the child and the grandparent is able to provide support. The rule is not clear where the parents or one of them is able but unwilling to support the grandchild, or cannot be found. The second rule as set out in Barnard NO v Miller 1963 (4) SA 426 (C) is that a legal duty to support a grandchild is not enforceable against a grandparent’s deceased estate. 

The court was asked to develop the common law to recognise a duty of support on the part of a grandparent’s deceased estate. 

The current legal position regarding the duty of support 

At law, liability to maintain is based on three factors: firstly, the claimant’s inability to support himself or herself; secondly, his or her relationship to the person from whom he or she claims support; and thirdly, the latter’s ability to provide support. 

The common law and Section 18(2) of the Children’s Act 38 of 2005 recognise that parents are the primary caregivers of their children by imposing on them a duty of support insofar as they can do so. There is a reciprocal duty of support between parents and children. If parents are unable to support their children who need support, other relatives including grandparents, may be obliged to support them. But that duty is imposed first upon a nearer relative before it moves to remoter ones. 

The liability of the grandparent’s deceased estate for the support of the grandchildren is not clear, so the SCA was asked to develop the common law but it declined to do so. It found that on a factual level, the mother’s case was deficient. The appellant sought on the stated facts to impose a duty to support a grandchild on a grandparent’s deceased estate where the parent of a child cannot be traced. But the mother did not take reasonable steps to locate the whereabouts of the father after he left South Africa to live in the United States or that she had exhausted all reasonable options open to her to find him. 

The child’s father, who is primarily responsible for the child’s maintenance, may be able to financially support the child. This would render it unnecessary to develop the common-law rule. Financial inability by a person from whom maintenance is sought must be established before that obligation is assumed by, or transferred to, another person. 

The court’s finding 

The court found that if it recognised the claim against a deceased grandparent’s estate – as a general principal – this had the potential to compete with the heirs of a deceased grandparent. It could also compete with other claims for maintenance that may arise, including by a surviving spouse or child. 

The court concluded that “due to the insufficiency of the evidence upon which to develop the common-law rule enunciated in Barnard and the wider consequences the proposed change will have on the rules of the law of succession, it would be inappropriate for this Court to develop the common law. The development sought by the appellant is quite drastic and may implicate various constitutional values. Parliament is the forum best suited to undertake such development if it is considered appropriate”.          

 


July 12, 2020

Videoconferencing during lockdown


Our courts have held that under lockdown conditions it is practical and indeed desirable that consultations between employers, employees and trade unions can take place via platforms like Zoom and Skype, as long as consulting parties have the necessary tools to meaningfully participate in this manner.

In the recent Labour Court matter of Food and Allied Workers Union (“FAWU”) v South African Breweries and another, South African Breweries (“SAB”) contemplated large-scale retrenchments, and issued a notice in terms of section 189(3) of the Labour Relations Act, 1995 (“LRA”) commencing consultations.

Because of the Coronavirus (COVID-19) and to adhere to the health protocols imposed by the State, SAB proposed that consultations continue via the videoconferencing application, Zoom. FAWU adopted the position that it could not consult via Zoom and that the consultations could only resume once the national lockdown had been uplifted.

SAB nevertheless continued consultations with the remaining consulting parties, and FAWU did not attend these e-consultations. FAWU then launched an application in terms of section 189A (13) of the LRA, seeking an order, inter alia, that in continuing consultation via Zoom, SAB had acted in a procedurally unfair manner.

Moshoana J held that the LRA does not prescribe the form in which consultations must take place. The LRA even allows for consultation to occur exclusively via correspondence. The court noted that that the COVID-19 pandemic meant that a new normal had to be adopted. The issue of contention was that consultations were normally held in the form of physical meetings and whether the absence of following that specific format rendered the consultations procedurally unfair.

The court held that in the present circumstances, applications such as Zoom must be used to ensure that health and safety of individuals are maintained. The irony that the urgent application launched by FAWU was heard by the Labour Court via Zoom was not lost on the court. The use of Zoom or similar applications for the purposes of consultations in terms of section 189 does not render the consultation process procedurally unfair.

Insofar as FAWU had refused to participate in the consultations via videoconferencing facilities, the Labour Court reiterated the principles that were articulated by the Labour Appeal Court in the matter of SAA v Bogopa and others: In circumstances where a trade union abandons the process due to no fault of the employer, the dismissal cannot be said to be procedurally unfair if the employee is subsequently dismissed without the consultation process having been completed.

Considering the above, the court dismissed FAWU’s application.

 


The Protection of Personal Information Act has finally arrived


The Protection of Personal Information Act, 2013 (the “POPIA”) became effective on 1 July except for certain provisions that only come into force on 30 June 2021 that allow for operational readiness of the Information Regulator who polices compliance.

There will be a one-year grace period within which to comply with POPIA and the Regulations enacted thereunder. Private and public bodies should ensure compliance by 1 July 2021.

POPIA reinforces a South African’s (called a ‘data subject’s’) constitutional right to privacy in both the public and private sectors by setting eight conditions for lawful processing of data. These conditions are: (1) accountability, (2) processing limitation, (3) purpose specification, (4) further processing limitation, (5) information quality, (6) openness, (7) security safeguards, and (8) data subject participation.

The act is not designed to prevent the processing of personal information but seeks to ensure that it is done fairly and without adversely affecting the rights of data subjects.

POPIA applies to the processing of personal information of a data subject entered in a record by a ‘responsible party’. He or she is the principal processor of personal data, who determines the purpose and means of processing. S/he processes the information in South Africa and is domiciled in South Africa or is domiciled elsewhere but uses automated or non-automated means in South Africa to process the personal information.

The POPIA defines “personal information,” as generally meaning information relating to an identifiable, living natural person and, where applicable, an identifiable company or other similar legal entity. The definition includes information relating to partnerships and unincorporated persons and provides a significantly detailed list of examples of personal information. These examples range from private correspondence and information about age, gender, sex and race to identifiers such as identity numbers, telephone numbers, location information, online identifiers, and personal opinions and preferences.

The responsible party processing personal information must comply with all eight conditions and the measures necessary to give effect to those conditions. Compliance must be achieved not only when the actual processing of information takes place, but also when determining the purpose and means of processing the personal information.

  1. Accountability: This condition requires that all processing of data occurs in compliance with POPIA. Practically, this requires that a data protection policy is established and that an internal information officer furthers the aims of and compliance with the legislation.
  2. Processing limitation: Personal data must be processed lawfully and in a reasonable manner that does not infringe on a data subject’s privacy. A responsible party must develop procedures and policies to ensure that personal information is processed in a “reasonable manner.”
  3. Purpose specification: Among other things, this entails that personal information may only be collected for a lawful, specific, and explicitly defined purpose related to the function or activity of the responsible party collecting the information. Data subjects must be informed of the purpose of the collection, except in exceptional circumstances, such as when the responsible party is required to comply with an obligation imposed by law.
  4. Further processing limitation: Once personal information has been collected and lawful processing has occurred, a responsible party may only further process that data in limited circumstances. These limited circumstances are determined based on whether the purpose of the further processing is “compatible” with the previously defined purpose.
  5. Information quality: A responsible party must ensure that any personal information in its possession is complete, accurate, not misleading and updated when necessary. In maintaining information quality, the responsible party must consider the purpose for which the personal information is collected or further processed.
  6. Openness: A responsible party must compile a manual that contains stipulated information as required by the South African Promotion of Access to Information Act, 2000, including details on the information that it holds. When personal information is collected, the responsible party must take reasonably practicable steps to ensure that the data subject is aware of: (1) the information being collected and the source of the information; (2) the name and address of the responsible party; (3) the purpose for which the information is being collected; (4) whether the data subject is required to provide the requested information, or may do so voluntarily; (5) the consequences of failing to provide the information; (6) the legal basis for the collection of the information; (7) whether the responsible party intends to transfer the information to a third country and the level of protection afforded to the transferred information; and (8) any further information necessary for the processing to be reasonable under the circumstances.
  7. Security safeguards: A responsible party must secure the integrity and confidentiality of any personal information in its possession or under its control by taking appropriate and reasonable technical and organizational measures to prevent loss, damage, unauthorized destruction of, and unlawful access to the personal information in its possession.
  8. Data subject participation:
    1. The data subject has the right to request confirmation of whether a responsible party holds personal information about the data subject. The data subject also has the right to request a record or description of the personal information about the data subject being held by the responsible party, as well as information concerning the identity of all third parties who have had access to the data subject’s personal information.
    2. The data subject may request that a responsible party:
      1. correct or delete personal information about the data subject that is inaccurate, irrelevant, excessive, out of date, incomplete, misleading or unlawfully obtained; and
      2. delete or destroy personal information that the responsible party is no longer authorized to retain.

 


May 30, 2020

Continuing to work after a fixed-term contract ends


A fixed-term contract automatically ends on completion of a specified task or project, or on a fixed date.

What is the status of an employee if a fixed-term contract ends but the employee continues working and the employer continues to pay the employee? Does that mean that the fixed-term contract is renewed or is the employee now employed on an indefinite period contract?

Case law supports the view that if an employee continues working after the date of expiry of the fixed-term contract, this does not necessarily mean that he or she automatically becomes a “permanent” employee. The specific facts of the case will determine what the nature of the relationship is after the expiry of the contract.   

The Labour Relations Act, 1995 (“LRA”) provides that an employee will be deemed to have been unfairly dismissed if an employee party to a fixed-term contract has a reasonable expectation that the contract will be renewed on the same or similar terms, or that he or she will continue to be employed on an indefinite basis, but the employer does not renew the contract or does not offer to retain the employee.

Section 198B of the LRA states that an employer may only employ an employee (who earns less that the threshold amount per the Basic Conditions of Employment Act) on a fixed-term contract of more than three months if the nature of the work the employee will perform is of a limited or definite duration, or the employer can show any other justifiable reason for concluding a fixed-term contract.

In other words, an employer can’t employ someone for several fixed-term periods, thinking that it can end the employment relationship at the end of any one of those fixed-term contracts. Clearly the employee has a reasonable expectation that he or she is employed on an indefinite period contract and not that the original fixed-term contract was being renewed for fixed periods, from time to time.