Tag Archives: POPIA

Many businesses tend to overlook the importance of an incident / misconduct report form. This in turn leads to tricky situations where if prevented from the start, can be avoided. However, in order to initiate this pro-active response it is important to understand why they are so important and how Joblaw East London can help you and your business.

1. Incident / misconduct report forms, form part of the investigation process and is not a warning in itself.
2. The completed form, with both parties versions is to be sent to our offices and from there we assess the incident report and determine the appropriate action to be taken. If a warning or notice of hearing needs to be drafted from the incident report form, then we do such and send it through to the employer/manager for issuing on the specific employee/s

Progressive discipline forms a vital part of any disciplinary process. Regulation indicates that we need to have both the employer and the employee’s versions before a warning can be issued. If a warning is declared unfair, and such warning was used in the progressive discipline in the placement and subsequent dismissal of an employee, it could be found by the CCMA that the whole dismissal was unfair.

An Employer must give an employee who works continuously for more than five hours a meal interval of at least 60 continues minutes. An agreement in writing (Contract, or addendum/ annexure to contract) may reduce the meal interval, but not less than 30 minutes. An agreement may also dispense meal intervals if an employee works less than 6 hours On one day.

An Employer may request an Employee to work in their meal intervals if the duties cannot be left unattended and cannot be performed by another employee. But the Employer will need to remunerate the Employee for said meal intervals.

An Employer will also be required to remunerate an Employee if the meal intervals are in excess of 75 minutes, unless the Employee lives on the premises at which the work is performed, or workplace is situated

An Employer should encourage an Employee to take their meal intervals, as failure to do so may have risks to the Employer and Employee

An Employee who has been working for the Employer for longer than 4 months and who works more than 4 days a week will be entitled to a total Of 3 (Three) Family responsibility leave days each leave cycle. (12 months)

This leave can be taken when there is a death Of the Employees direct family member

(Spouse, life partner, adoptive parent, grandparents, child, grandchildren or sibling) and/ or when the Employee’s child is sick.

The Employee is only entitled to a total Of 3 (three) such family responsibility leave days in a 12 month cycle and may take part Of / or the full day at any time, after notice has been given to the Employer.

Upon request from the Employer, the Employee should provide reasonable proof to the

Employer and only thereafter is the Employer required to pay the Employee for said days

Unused Family Responsibility leave does not accumulate and / or role over to the next year, any unused Family Responsibility leave, will lapse and the Employee will forfeit these days in the next cycle.

This article aims to provide general information and does not constitute legal advice.

The Protection of Personal Information Act (POPIA) has been in partial effect since November 2013. As of 01 July 2020, most of the remaining sections has commenced, and these sections bear relevance to employers.

The POPI Act is formulated based on the provision of the Constitution of the Republic of South Africa (Section 14, 1996) which provides that everyone has the right to privacy, including protection against any unlawful collection, retention, dissemination or use of personal information.

The Act itself promotes the protection of personal information processed by both public and private institutions. It establishes minimum requirements for the processing of personal information and provides for the establishment of an Information Regulator to exercise certain powers and to perform certain duties and functions in terms of the Act as well as the Promotion of Access to Information Act (2000), the issuing of codes of conduct, the rights of persons regarding unsolicited electronic communications and automated decision making and to regulate the flow of personal information across the borders of the Republic and all connected matters. It applies to the processing of personal information of all personal data that is entered into a record by or for a responsible party through either manual or automated means.

These provisions also impact the means and methods employers, as the responsible party, use to gather, record, store, and use employee records. Anything that the employer collect that contains an employee’s personal information is governed by this Act. Personal information includes an employee’s application file, personal file, payroll information, leave/medical file, and any other information the employer has about the employee. In other words, anything that employer collects that contains an employee’s personal information.

The POPI Act defines “personal information” in very broad terms to include any information relating to the identity of a person as well as any information that can be used to identify a person, such as race, gender, sex, marital status, nationality, ethnicity, sexual orientation, physical or mental health, disability, religion, culture, language, education, medical, financial, biometric, criminal or employment information, identifying number, symbol, e-mail address, location, opinions, confidential correspondence, etc.

It is a fundamental principle of POPIA that an employee must consent to the processing of his/her personal information. This means that he/she must be fully informed of the scope and nature of the processing. Consent must also be given voluntarily for a specific process. Consent gained by an employer using an unequal negotiating position, will not meet the definition of consent according to the POPIA.

POPIA in practise

Employers must ensure that staff responsible for processing personal employee information, as described by the Act, are aware of the conditions and requirements imposed on employers by the Act.

Employers should review all data records to determine what personal and/or sensitive information it has for employees and where the information is stored. Where information is being processed without consent, employers should determine what the legitimate basis is for doing so, and if the processing is based on the “legitimate interest” of the employers, this should be documented. Employees should be notified of the scope and nature of personal information processing and their consent to do so must be gained for processing any information that has not been obtained or kept legitimately.

Notify employees of the nature and scope of processing and gain consent to the extent that any employee data is not being processed for any reason other than a legitimately sound one.

Data privacy policies should be drafted, and all employees must be trained with regards to the content of the policy. This policy should include steps by which employees can lodge complaints against the processing of personal information.

Employment contracts should be reviewed and updated where necessary to include wording in compliance with the principle of consent by the employee to process specific personal information, as required to enter into a contractual relationship – including full information of the scope and nature of the processing. An employment contract cannot include a general consent clause with the intent to cover ongoing information processing during the period of employment. POPIA defines ‘consent’ as “any voluntary, specific and informed expression of will in terms of which permission is given for the processing of personal information.” A general consent would not satisfy the requirement of specificity to every instance of information processing.

This article is offered only as an introduction to the implications of POPIA and its impact on employment. Employers have a 12-month grace period from the commencement of the act to reach compliance and are strongly encouraged to consult with a labour and personal information specialist. Contact our Cape Town office for assistance 021 919 6418.