This newsletter highlights the latest statutory amendments, enactments, caselaw, notices and ancillary developments relevant to the SERR Synergy products and services for the month.
LEGISLATIVE AMENDMENT AND DEVELOPMENT NEWSLETTER - SEPTEMBER 2021
B-BBEE:
The latest Draft Tax Bill published on 28 July 2021 by the National Treasury incorporates the tax proposals made in the 2021 Budget. One of the changes proposed by Government was aimed at preventing abuse of the Employment Tax Incentive (ETI).
The definition of “employee” will be amended in order for the substance of the employment relationship, rather than the legal form, to govern eligibility for claiming the ETI. The proposal will be deemed to have retroactive effect from 1 March 2021.
EMPLOYMENT EQUITY:
Employment Equity Act, 1998 (Act No. 55 of 1998):
The Department of Employment and Labour published a media statement dated 16 August 2021 indicating that the Department of Employment and Labour’s Employment Equity (EE) Directorate and Inspection and Enforcement Services (IES) branch would jointly conduct the 2021 EE virtual workshops nationally.
The virtual workshops will address the 21st CEE Annual Report (Provincial EE status); provide updates on EE Amendments; 2021 EE Reporting; and EE inspections and enforcement in the labour market. The virtual EE workshops will take place from 1 September to 28 September 2021.
Constitution of the Employment Equity Committee:
SERR Synergy has identified the need to formulate a constitution for EE committees in order to regulate their composition and activities. To this end, SERR Synergy is currently in the process of finalising an Employment Equity Committee Constitution which will be provided to SERR Synergy SDF/EE clients. A properly constituted EE committee will become even more imperative once the new amendments referred to below, become law.
The following bills aimed at amending the existing EE Act were published on 25 August 2021 and are currently under consideration by the National Assembly:
• Employment Equity Amendment Bill B14B-2021
• Employment Equity Amendment Bill B14A-2020
POPIA & PAIA:
Promotion of Access to Information Act (Act No. 2 of 2000), as amended by Act No. 31 of 2019:
The Department of Justice and Constitutional Development, in Government Gazette No. 45057 dated 27 August 2021, provided Regulations relating to the Promotion of Access to Information Act, 2021. These Regulations include the arrangement of certain matters in respect of the Information Regulator, availability of the guide, access to information, and complaints to the Information Regulator.
SERR Synergy’s Information Compliance (POPI and PAIA) Department can assist businesses or entities with a full range of Information Compliance service offerings, including the compilation of Data and Information Protection Reports, drafting of the required Data Privacy policies, updating agreements to deal with data considerations, advice on internal data-handling requirements, or an understanding of the specific data-privacy roles that businesses or entities are required to fulfil.
LABOUR RELATIONS:
Bargaining Councils:
- The Director of Collective Bargaining, Stephen Rathai, in Government Gazette No. 44908 dated 30 July 2021, extended the period provided for in Government Notice No. R 1187 of 30 September 2016 regarding the operations of the Provident Fund and Mortality Benefit Association Collective Agreement of the Bargaining Council for the Furniture Manufacturing Industry (KwaZulu-Natal) to 31 December 2021.
- The Registrar of Labour Relations, Lehlohonolo Daniel Molefe, in Government Gazette No. 45021 dated 20 August 2021, gave public notice that an application for the variation of its registered scope had been received from the Bargaining Council for the Meat Trade (Gauteng).
- Government Gazette No. 45011 dated 20 August 2021 was substituted by Government Gazette No. 45039 dated 24 August 2021 in which the Minister of Employment and Labour, Thulas Nxesi, declared that the Collective Agreement that appears in the Schedule to this Gazette, had been concluded in the National Textile Bargaining Council and was binding in terms of section 31 of the Labour Relations Act 66 of 1995 on the parties to the Agreement, and would also be binding on other employers and employees in that Industry with effect from the second Monday after publication of this Notice.
- The Director of Collective Bargaining, Stephen Rathai, cancelled Government Gazette R362 of 18 June 2021 and, in Government Gazette No. 45058 dated 27 August 2021, declared that the provisions of Government Notice R. 663 of 12 June 2020 and R. 965 of 4 September 2020 of the National Bargaining Council for Hairdressing, Cosmetology, Beauty and Skincare Industry, Main Collective Agreement would be effective from the publication of this notice (27 August 2021) until 30 June 2022.
Department of Employment and Labour:
- The Registrar of Labour Relations, Lehlohonolo Daniel Molefe, in Government Gazette No. 44908 dated 30 July 2021, gave notice that Arise Msebenzi Union of South Africa (AMUSA) (LR 2/6/2/3165) had been registered as a trade union effective from 7 July 2021.
Latest caselaw:
SSC Infrasek (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (C214/2019) [2021] ZALCCT 53 (13 August 2021)
The third respondent, Mr Moses (Moses), was found guilty and dismissed for gross dishonesty in that he removed a second-hand cutter from the second-hand tool-shelf of the logistics store and presented it to the logistics manager as his own in order to receive a new cutter.
The arbitrator confirmed that Moses was guilty of dishonesty and consequently found that the inquiry had not been procedurally unfair; however, the arbitrator found that the dismissal was substantively unfair because the employer had acted inconsistently by not dismissing other employees who had been found guilty of similar conduct.
The reviewable irregularity by the arbitrator was that no weight should be attached to the admission of guilt and apologies tendered by other employees, who then received final written warnings for dishonesty. In this matter, Moses did not come forward to admit his dishonesty nor apologised for any wrongdoing.
The Labour Court held that: “It is also noteworthy that the employer adopted a consistent approach to all the cases involving alleged dishonesty. It took the form of a pre-hearing opportunity for the employee to explain what they had done. It was the managing director, Mr Venter, who spoke to the employees and gave them a chance to own up to any dishonesty. In both of the other similar cases of removing items without permission from the store, the employees admitted they had taken the items and they were issued with final written warnings for dishonesty”.
The arbitrator erroneously disregarded the difference in the employees’ behaviour and the fact that such differences in behaviour are legitimate grounds for imposing different sanctions for the same misconduct. The Court held that the arbitrator had ordered the reinstatement of Moses and did not impose a final written warning on him, resulting in inconsistency with the outcome in those other similar misconduct cases.
The Court held that Mr Moses’s dismissal was substantively fair and that the arbitrator’s finding had been reviewed and set aside.
CCMA and Bargaining Council caselaw:
Hing / Pointer SA (Pty) Ltd (2021) 30 CCMA 8.37.17
On 17 February 2021, Mr Hing signed a letter of appointment for the position of Technical Account Manager with Pointer SA (Pty) Ltd (the employer).
Mr Hing reported for his first day on 1 April 2021 to commence his employment duties but was dismissed because he had not obtained a letter of release from his previous employer confirming that he was not bound by the restraint of trade agreement.
The Commissioner at the CCMA held that it was common cause that the applicant had disclosed the restraint of trade to the respondent prior to signing of the letter of employment and that the dismissal of Mr Hing was substantively fair considering that the restraint of trade prohibits the employee from working for the previous employer's competitors for a period of 12 months from the date of termination of his employment. Mr Hing’s new position did not entail securing clients for Pointer SA (Pty) Ltd, but Mr Hing was in possession of confidential information of his previous employer which he could possibly convey to his new employer. Furthermore, the fact that Mr Hing entered into a contract of employment while the restraint of trade was in force, is equivalent to misconduct.
The Commissioner further held that Mr Hing’s dismissal was procedurally unfair because he was not afforded a disciplinary hearing prior to being dismissed.
Temporary Employee / Employer Relief Scheme (TERS):
The Department of Employment and Labour, in Government Gazette No. 44978 dated 10 August 2021, published a directive regarding the civil unrest that occurred in Gauteng and KwaZulu-Natal (KZN) from 9 – 18 July 2021, to provide financial assistance to vulnerable workers who had lost remuneration in full or in part as a result of the closure of a workplace due to the unrest. This regulation is cited as the “Destroyed, Affected or Looted Workplaces: Temporary Financial Relief Scheme 2021”.
Unemployment Insurance Fund (UIF):
In a media statement by the Department of Employment and Labour dated 20 August 2021, the department confirmed that the UIF would be accepting applications for workers affected by the civil unrest in Gauteng and KwaZulu-Natal (KZN), as indicated in the “Destroyed, Affected or Looted Workplaces: Temporary Financial Relief Scheme 2021” directive for TERS, as from 25 August 2021.
The SERR Synergy Labour Department can guide and assist businesses with the processes and procedures to ensure compliance with labour legislation and to mitigate risks relating to employment issues to which businesses are exposed. The above documentation can be requested from the SERR Synergy Labour Department.
OCCUPATIONAL HEALTH AND SAFETY:
The Department of Employment and Labour, in August 2021, published The Profile of Occupational Health and Safety South Africa, which is a situational analysis of the occupational safety and health system in the country. The project was commissioned by the Department of Employment and Labour (DEL) and the International Labour Organization (ILO).
The Profile is the first stage in the process of policy development and a national occupational safety and health strategy as described by the ILO C187. The research approach was clarified as quantitative and qualitative and included structured interviews with open-ended questions, allowing for the collection and analysis of rich data.
Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993):
The following bills were published on 25 August 2021 and are currently under consideration by the National Assembly:
• Compensation for Occupational Injuries and Diseases Amendment Bill B21B-2020
• Compensation for Occupational Injuries and Diseases Amendment Bill B21A-2020
The Department of Employment and Labour, in Government Gazette No. 45057 dated 27 August 2021, published a privacy statement of the Compensation Fund indicating that it has a legal mandate in terms of the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993) (COIDA) to provide compensation for disablement or death caused by occupational injuries or diseases sustained or contracted by employees and to provide for matters in this regard.
The Compensation Fund therefore collects and uses information, including personal information as defined in the Protection of Personal Information Act 4 of 2013. All personal information that the Compensation Fund collects is private and confidential, and the public are assured that the necessary safeguards are in place. The Compensation Fund confirms it will not use personal information shared with it for any purpose other than the purpose for which it was collected.
Prior to sharing such personal information with any third parties, the Compensation Fund will take appropriate steps to ensure that it has taken adequate measures to comply with applicable data protection laws and will protect the information that it will disclose to a third party.
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. 44986 dated 12 August 2021, extended the national state of disaster from 15 August 2021 to 15 September 2021.
The SERR Synergy Occupational Health and Safety Department can assist businesses to comply with the relevant legislation. The above documentation can be requested from the SERR Synergy OHS Department.
COVID-19 VACCINES:
Covid-19 Employment Practical Guidelines for Employers:
In a statement on the virtual South African Cabinet Meeting dated 18 August 2021, the Cabinet approved that persons between the ages of 18 years to 35 years were eligible to be vaccinated as from 20 August 2021.
In order to implement a mandatory Covid-19 vaccine policy in the workplace, an employer must follow the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces as published by the Minister of Employment and Labour in Government Gazette No. 44700 dated 11 June 2021.
SERR Synergy has developed a Covid-19 Mandatory Vaccine Workplace Policy to provide assistance to employers in addressing aspects such as the application of and parties excluded from the directive; obligations of the employer and employee; employees suffering from side effects of the Covid-19 vaccine; confidentiality aspects; and disciplinary measures to be taken should an employee refuse to be vaccinated, in instances where a mandatory Covid-19 vaccine policy is legitimately implemented.
The SERR Synergy Labour Department can assist businesses to comply with the relevant legislation. The above policy and directive can be requested from the SERR Synergy Labour Department.
Compiled by:
SERR Synergy Research Division
Lané Boshoff – research@serr.co.za