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.

 

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.

NON COMPOS MENTIS

A client asked me if she could still act on a power of attorney that her mom signed in her favour, now that her mom had been diagnosed with dementia.

At law, a power of attorney terminates on the incapacity of person (who becomes incompetent in law and is deemed “to be of unsound mind and as such incapable of managing his affairs”).

Once the power of attorney becomes invalid, the family must apply for administration or curatorship.

Curatorship

On behalf of the family, a lawyer applies to the High court for three things:

• to declare the patient of unsound mind and incapable of managing his/her affairs;
• to appoint a curator ad litem;
• to appoint a curator bonis or curator personae or both;

The curator ad litem is usually an advocate, who interviews two specialists regarding the patient’s mental facilities, and then reports back to the court whether the patient is of unsound mind and incapable of managing his/her affairs.

If so, the court will appoint a curator. There are two forms of curatorship and one or both may be appointed:

• the curator bonis administers the person’s property, including his finances;
• the curator personae takes personal decisions for the person. This involves serious curtailment of the person’s rights and freedoms and the court is therefore not easily persuaded to grant such an appointment.

Administration

The Mental Health Care Act provides for the appointment of an administrator to manage the patient’s property.  This Act applies only to the mentally ill and to those with severe or profound intellectual disability.

It is not necessary to go to the high court for this as you can apply direct to the Master of the High Court.  A mental health care practitioner who could be a general practitioner and not necessarily a psychiatrist – certifies that the person suffers from an illness or disability relating to mental health.

The administration applies only if the capital assets of the patient’s estate is under R200,000 or earns an income of up to R24,000 per year.

The Master appoints an interim administrator to investigate the patient’s finances, etc. and makes a recommendation to the Master.  In this case the costs payable to the investigator are negotiated by the Master, and are payable out of the estate.

Death of Collins Khosa in Alexandra

There has been unfounded criticism that the SANDF and the SAP have merely received a rap on the knuckles after the death of Collins Khosa in Alexandra. The judgment by Fabricius makes it clear that much more is to follow:

Khosa and Others v Minister of Defence and Military Veterans and Others (21512/2020) [2020] ZAGPPHC 147 (15 May 2020).

http://www.saflii.org/za/cases/ZAGPPHC/2020/147.pdf

 

“The high court in Pretoria on Friday declared that all people in SA are entitled to a number of rights which cannot be suspended, even during the Covid-19 state of disaster. These include the right to life, the right not to be tortured in any way and the right not to be treated or punished in an inhumane and cruel way”.