This newsletter highlights the latest statutory amendments, enactments, caselaw, notices and ancillary developments relevant to the SERR Synergy legal compliance products and services for the month.
LEGISLATIVE AMENDMENT AND DEVELOPMENT NEWSLETTER - MAY 2022
B-BBEE
Independent Communications Authority of South Africa
The Independent Communications Authority of South Africa (“the Authority”), in Government Gazette No. 46245 dated 14 April 2022, amended the Regulations of the Limitations of Control and Equity Ownership by Historically Disadvantaged Groups (HDG) and the Application of the ICT Sector Code, 2021 published in Government Gazette No. 44382 (Notice No. 170) of 31 March 2021, to the extent reflected in the Schedule in terms of section 4(7)(b) of the Electronic Communications Act, 2005 (Act No. 36 of 2005).
EMPLOYMENT EQUITY
Employment Equity Act, 1998 (Act No. 55 of 1998)
The Department of Employment and Labour issued a media statement dated 29 March 2022 submitting that approximately 60% of employers had been referred for prosecution in the financial year ended 31 March 2022 for failure to comply with the employment equity (EE) legislation.
A Director-General (DG) may conduct a review to determine whether an employer is complying with the Employment Equity Act (EEA). Therefore, should the employer fail to comply with the DG’s recommendations / request, the DG may refer the employer to the Labour Court.
With regards to the aforesaid, should a matter be referred to the Labour Court, the employer’s substantive compliance with the EEA, in conjunction with various other factors, will be considered by the Court to determine whether the employer is non-compliant in terms of the EEA. In the event that the employer is found guilty of non-compliance, the Court will evaluate the case in its entirety to determine the appropriate fine to be imposed on the employer.
The above media statement can be requested by SERR Synergy Training and Skills Development Facilitator (SDF) clients from the SERR Synergy Training and SDF Departments.
LABOUR RELATIONS
- The Registrar of Labour Relations, Lehlohonolo Daniel Molefe, in Government Gazette No. 46165 dated 1 April 2022, gave notice of the cancellation of registration of the South African Revolutionary Allied Workers Union (SARAWU) (LR/2/6/2/2440) effective from 15 February 2022.
- The Director Bargaining Council, Stephen Rathai, in Government Gazette No. 46285 dated 28 April 2022, extended the period of operation of the Furniture Bargaining Council’s Collective Bargaining Fee Collective Agreement until 30 April 2023.
Labour Court case law:
Nandos Scottsville v Ntokozo Sandile Gwala (D06/2019) [2022] ZALCD (14 April 2022)
Mr Gwala (employee) was employed at Nandos (employer) from April 2014 as a front griller. In addition to his normal duties, he was a Nando’s Community Forum Representative and crossed trained to work in various parts of the store, such as in the food preparation station, the dining area and the cash desk. On 8 April 2018, Mr Gwala ate two carrot slices from the double boiler (bain-marie), which came to light during an investigation into another matter. Mr Gwala was found guilty and dismissed on 1 August 2018 for gross misconduct, described as unauthorised consumption of company stock, in that he was “dishonest by consuming company stock being vegetables whilst on duty”. The CCMA Commissioner found the dismissal substantively unfair and awarded reinstatement of Mr Gwala. The employer approached the Labour Court to review and set aside this award.
Mr Gwala’s version of events delineated that he had tasted the carrots to determine whether said carrots were of an acceptable standard to be served to the Nando’s customers. Furthermore, the company’s Grilled Roast Vegetables Procedure Manual did not address nor provide clarification on the issue regarding the tasting of vegetables. The court held that, “…[Mr Gwala] breached the rule (albeit not with any associated dishonesty), and that the [employer] was entitled to regard the issue as serious, given that the rule exists to minimize stock losses”. The Court also held that no objective evidence was submitted to substantiate the irrevocably damaged employer-employee trust relationship.
Therefore, approximately four years later, on 14 April 2022, the Labour Court found that the Commissioner’s findings and conclusions were that of a reasonable decision-maker and that the award was not susceptible to review. The application was dismissed. The dismissal therefore stood to be unfair.
OCCUPATIONAL HEALTH AND SAFETY
Disaster Management Act, 2002 (Act No. 57 of 2002)
- The Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma, in Government Gazette No. 46197 dated 4 April 2022, terminated the national state of disaster.
- The Head of the National Disaster Management Centre, Dr Mmaphaka Tau, in Government Gazette No. 46199 dated 5 April 2022, notified the public that the National Disaster Management Centre had revoked the classification of the Covid-19 pandemic as a national disaster.
Occupational Health and Safety Act, 1993 (Act No. 85 of 1993)
- The Department of Employment and Labour, in Government Gazette No. 46299 dated 29 April 2022, implemented Regulations 14, 14A, 14B, 14C and 14D of the Regulations for Hazardous Chemical Agents, 2021, as amended.
Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993)
The Compensation Commissioner, Vuyo Mafata, in Government Gazette No. 46269 dated 22 April 2022, published a notice requesting employers to notify the Compensation Fund (CF) if they have ceased to operate a business or no longer have employees to be covered by the CF, accompanied by the CF-1C Application for Employer Deregistration Form, indicating that–
- the fully completed CF-1C Forms must be forwarded to cfoutbound@labour.gov.za (please contact the CF Call Centre at 0800 321 322/0860 105 350 for further clarity);
- should the Employer fail to notify the CF on the status of their business, the CF will assume that an employer is still operating and estimate assessments for all outstanding ROEs. Any Notice of Assessments issued with such estimates will be legally binding by the Employer for payment;
- failure to make a payment will result in interest and penalties charged on overdue amounts.
The Director-General of Employment and Labour, Thobile Lamati, in Government Gazette No. 46270 dated 22 April 2022, issued the maximum earnings and minimum assessments, accompanied by the CF-2A Form, in terms of s 83(8) and s 83(2)(b) of the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993), as follows:
- A Maximum Earnings on Actual Earning is R506 473 (1 March 2021 to 28 February 2022)
- A Maximum Earnings on Provisional Assessment is R529 264 (1 March 2022 to 28 February 2023)
- A Minimum Assessment for commercial employers is R1342
- A Minimum Assessment for private domestic employers is R463.
The Information Regulator
The Information Regulator (Regulator) is an independent body established in terms of s 39 of the Protection of Personal Information Act, 2013 (Act No. 4 of 2013) (POPIA). The Regulator is empowered to monitor and enforce compliance by public and private bodies with the provisions of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000) (PAIA), and POPIA.
On 22 April 2022, the Regulator published a media statement addressing the measures taken by the South African Government to identify prevalence of the virus and containment of the spread of the SARS-Cov-2 virus. The Regulator avers that when Covid-19 testing, vaccination and track-and-tracing of necessity were performed, a vast amount of personal information needed to be collected and obtained. Due to the aforesaid practices, the Regulator published a Guidance Note on 3 April 2020 delineating the processing of personal information in the management and containment of Covid-19 in terms of POPIA.
Under the auspices of the Regulator’s Parliamentary Report dated 15 September 2020, provision was made for the Regulator to monitor the compliance of the National Department of Health (NDoH) with POPIA in general, together with the Guidance Note when the National State of Disaster has come to an end.
The Regulator requested the NDoH and NICD to clarify by no later than 29 April 2022 the following queries on how the NDoH and/or NICD will comply with the applicable conditions for lawful processing of personal information to determine whether it is necessary or appropriate to conduct a compliance assessment on the Department of Health and NICD as indicated by Adv. Collen Weapon, Member of the Regulator:
- What measures have been taken or intend to be implemented to ensure compliance with the de-identification requirements (meaning that any information which can be used to identify a person is deleted), the retention period for personal information collected for track-and-trace purposes, the method or manner to be applied in destroying or deleting the records of personal information?
- Does the NICD or the NDoH intend to transfer, or has it transferred, the personal information to a third party who is in a foreign country, and what level of protection is afforded to the information by the foreign country?
- Lastly, the NDoH and NICD to provide details about the nature or category of the special personal information and personal information of children held by or under the control of these institutions.
The SERR Synergy Occupational Health and Safety Department can assist businesses to comply with the relevant legislation. The above documentation can be requested by SERR Synergy OHS clients from the SERR Synergy OHS Department.
Compiled by:
SERR Synergy Research Division
Lané Boshoff – research@serr.co.za