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Well before our current crisis, forward-thinking employers have been asking questions about approaches to the training and development of their people. 2020’s Entirely unexpected change, of course, has forced all employers to rethink how employees can be upskilled and developed, under very real budget constraints, to still strengthen organisational capabilities. With the Covid-19 third wave upon us, we are not going ‘back to normal’ anytime soon and if anything, the reskilling of employees is becoming a strategic imperative. For many employers, it has required some courageous decision-making as they’ve realised the seriousness and likely long-term effects of the Covid crisis, and they made it a priority to start looking for people development alternatives such as e-learning and virtual training, where possible. But for most employers, the biggest hurdle to overcome is that of funding and being able to identify external opportunities to fund and support their ongoing training and development plans. Enter the all-familiar Skills Development Levy Act and the need for those employers, who are not yet participating fully, to immerse themselves in this landscape. The Act makes provision for skills development by means of a levy-grant scheme, and the establishment of sector-specific Sector Education and Training Authorities – or SETAs – to administer the scheme’s funds and manage the skills development process. In essence, this Act provides that all organisations in South Africa with an annual wage bill of R500 000 or more must pay 1% of this bill as a levy (not to be deducted from the employees’ wages), to be collected by South African Revenue Services (SARS), on a monthly basis, together with PAYE and UIF. Once registered with a relevant SETA , employers may participate in levy grant schemes. Below is a useful checklist for employers to ensure that opportunities are maximised. Employer to register with SARS – The employer must register with SARS to pay its monthly SDL by completing form EMP. Submit Mandatory Grant Application annually to registered SETA – In order to receive payment of a mandatory grant, equivalent to 20% of the levy amount paid by the compliant and participating employer, firms need to submit (in advance) a workplace skills plan (indicating the planned training) and (after the training) an annual training report to the relevant SETA to which they pay the levy. – The submission period is fixed across all SETA’s and the annual due date is the 30th of April each year. Apply for Discretionary Grants (DG) annually with registered SETA – Be on the lookout for DG notifications from the registered SETA. Funding windows vary between SETAs. – Download the SETA Sector Skills Plan and navigate to the section that covers Skills Shortages/Critical Skills and Hard-to-Fill Vacancies/Scarce Skills. This will provide insight into which programmes will be supported through funding grants. 8.1 Employed Learners (Employees) 18.2 Unemployed Learners – Consider applying for Skills Programmes (accredited short courses); Learnerships/Apprenticeships and Bursary sponsorship. – Remember that SETAs are also open to accepting applications for non-accredited short courses. – Unemployed learners may be brought in on fixed-term employment contracts linked to the training programme which may assist with required people resources. – On a Learnership/Apprenticeship the grant will cover both the stipend (salary) as well as the cost of the training course. – SETAs are also making additional values available to purchase PPE for these unemployed learners. Tax Advantage – Section 12H of the Income Tax Act provides additional deductions to employers for qualifying Learnership agreements. – Training contracts that qualify for these deductions are Learnership agreements and apprenticeships registered with a SETA. – These additional deductions consist of an annual allowance and a completion allowance. The allowance value varies according to the qualification NQF Level, as can be seen from the table below:   Qualification equal to NQF level 1 – 6 Qualification equal to NQF level 7 – 10 Annual Allowance R40 000 R20 000 Completion Allowance R40 000 R20 000 Addition Allowance in respect of a person with a disability R20 000 R30 000

Peter Drucker is often misquoted as saying “you can’t manage what you can’t measure”, and whilst he might not have said those words precisely, he certainly did teach the importance of having clarity for both employees and managers. The Covid 19 pandemic has fundamentally shifted the way the world works and with many businesses and individuals realising that being office-based or working the same hours is not necessarily required, it’s highly likely that many will opt for remote and flexible working options long after we’ve got the virus under control. At the outset, many managers worried that they’d lose control of their employees working from home and imagined them slacking off, resulting in businesses introducing new systems for monitoring their teams and tracking time. More than a year later, the pendulum has swung the other way with managers – and employees – complaining that work has taken over with the pressure of being “always-on” and “work anywhere, anytime”. To regain balance, it’s critical that roles are properly defined and that output, not hours, becomes the focus of performance management. The clarity of a job profile and associated performance contract empowers both manager and employee to measure what matters, establish routines that fit the uniqueness of the circumstances, and enable boundaries to be maintained. And, at a time when many businesses have also had to rethink their plans, products, profit models, and people strategies, the time is ripe to relook at the organisation design (OD) and ensure it’s fit for purpose. OD Is Often Considered Non-essential When business is booming, the time is best dedicated to servicing customers rather than ensuring that job profiles remain up-to-date. Role shifts, skills requirements change, and the dailiness of what needs doing is very rarely documented accurately, creating numerous HR challenges. Key HR Tool Job profiles are a critical tool for effective HR management and should provide the key information related to the role. Profiles should be built conscious of not incorporating unnecessary barriers to transformation . Ideally, to maximise use across the employee life cycle and to encourage the transition of people and skills into and across the business, job profiles should be built making use of a competency framework and speak to more than just the duties and tasks associated with the role. By using competencies as building blocks, an organisation can create an integrated talent management network to ensure it hires, develops, and promotes the right people into the right positions. Further, by quantifying what is required and at what proficiency level (input), competency-based job profiles enable organisations to fairly assess and remunerate individuals relative to their unique match, and the requirements of the business. A competency framework provides a single source of truth and common language to be used across the organisation, in recruitment & selection, skills development, succession planning, and performance management. Output, Not Time Focus Whether working in-office, remotely, or flexibly, work should be measured on output rather than the number of hours put in. This switch means that individuals can be measured fairly on their productivity, as opposed to who puts in the longest hours. In addition to providing individuals with the opportunity to adjust their working hours to meet personal preferences, family responsibilities, or special circumstances, businesses benefit by focusing management efforts on quality and end results rather than playing policeman. Remuneration linked to output and performance will benefit both businesses and individuals alike as increased productivity translates to mutual value. Just as businesses experience changes linked to economic conditions and product life cycles, role outputs are likely to shift more regularly than the associated key performance areas. By drawing up relevant job profiles that focus on competencies and key performance areas, rather than nitty-gritty tasks and duties detail, these living documents have a longer lifespan. Performance contracts, linked to the job, which specify the expected outputs, can then be drawn up and adapted regularly. Unpredictable conditions and rapidly changing circumstances demand that performance contracts be established – and measured against – over a shorter time span, typically quarterly. Future-fit I am certain that most businesses have seen significant changes in the past eighteen months and that many employees have taken on different responsibilities, especially in the wake of restructuring and retrenchments. Are you – and your team – clear on what needs to be done, and by whom? Business and individual performance suffers because of uncertainty and the stress this creates. (Re)define the goalposts and see improvement in employee engagement, performance management, and business results. If you’re looking for assistance in updating your job profiles and performance contracts to meet the realities of today’s diverse workforce, please get in touch with me at natalies@globalbusiness.co.za .

In South African Broadcasting Corporation SOC Ltd v Phasha – (2021)30 LAC 1.11.9 , a General Manager was charged with misconduct and agreed to a hearing conducted by a CCMA Commissioner in terms of section 188A of the Labour Relations Act (LRA). The employee, upon learning it was Commissioner Phala, brought an application seeking the recusal of Commissioner Phala. According to her, he was the chairperson of a range of internal disciplinary proceedings involving staff of the employer, all of which had been conducted in the offices of their attorneys. She stated that she was suspicious of the long-standing relationship between Mr Phala and the firm of attorneys. In her view, there was a reasonable apprehension that she would not benefit from an impartial hearing. She contended that the matter should proceed before a Senior Commissioner who had not dealt previously with employment disputes involving the employer. The hearing was rescheduled for 11 December 2018. The notice of set down generated by the CCMA identified Mr. Terry Moodley as the Commissioner who was now to conduct the section 188A inquiry. And yet again, the employee was not satisfied with the appointment. According to the employee, “It then dawned on me that he had been the same Commissioner who had rendered an award of dismissal against Mr. Hlaudi Motsoeneng”. She thus launched another recusal application. Commissioner Moodley issued a ruling in which he found that her perception of bias was unreasonable and without a factual foundation. He dismissed her application. After the employee’s allegations in the recusal applications, the employer sent a letter requesting the employee to make representations as to why she should not be dismissed for making the recusal applications, alleging that their contents had breached the trust relationship and her employment contract (duty of good faith). The employee’s attorneys responded to the letter asserting her rights to a hearing, however, made no representations. The employee was therefore summarily dismissed. Labour Court The employee launched an urgent application in the Labour Court, alleging that the employer had breached her employment contract. The employee was of the view that her termination was unlawful. The Court held in favour of the employee and found that the summary dismissal was unlawful.SABC was interdicted from pursuing any disciplinary action against the employee except for an inquiry under section 188A and directed the Corporation to pay the costs on a punitive scale. Labour Appeal Court The SABC then approached the Labour Appeal Court. The employer contended, on appeal, that although the SABC’s Disciplinary Code was incorporated in the employee’s employment contract, a provision in the contract – which expressly entitled the Corporation to terminate the contract if the employee committed a material breach or the Corporation lost confidence in her – superseded the Code. The Labour Appeal Court noted that the consequences of the SABC’s argument would be that the contractual provision on which it relied would relieve the Corporation of the need to offer any form of hearing to an employee it decided to dismiss summarily. Turning to whether the SABC was entitled to abandon the section 188A process, the Court noted that disciplinary proceedings conducted under that provision are consensual. In this case, the process had commenced but did not proceed because of the Corporation’s reaction to the recusal applications. The Court found that the recusal applications amounted to independent acts of misconduct. The SABC was putting form over substance. The Corporation should have formally charged the employee with the additional misconduct and brought them within the scope of the section 188A proceedings. The Court added that the judgment should not be construed as suggesting that employers may not proceed with separate disciplinary measures in circumstances where a discrete act of misconduct occurred – which was unconnected -with charges that gave rise to a section 188A Arbitration. In this case, the unlawfulness of the SABC’s conduct rendered the employee’s dismissal void, and the employee was entitled to return to her position. However, this did not preclude the SABC from continuing with the section 188A hearing. Regarding section 188A hearings before a CCMA Commissioner, the key lesson is that you can always add charges after the process has started. This just means a slight delay but may be worth it and expedite a fair dismissal. Attend Global Business Solutions’ Mid-Year Labour Law Update: Challenges such as the one presented above often crop up in the workplace and can be quite tricky to handle if you don’t know which relevant case law you can rely on. Attend Global Business Solutions’ Mid-Year Labour Law Update and learn about relevant decisions that will assist you in your company.

In Mahlophe v ETA College – (2021) 30 CCMA 7.1, the term ‘implied resignation’ was developed. Here are the facts of the case so that you can learn more about it. The employee, a sports management lecturer at the Bloemfontein campus, decided to leave for Cape Town on 27 March 2020 in anticipation of the COVID-19 lockdown period. The employee did not communicate to her employer that she was in Cape Town. On approximately 13 May 2020, the employer and employee made contact. At that time, the employer had employed a temporary lecturer in the place of the employee due to communication issues between them. On 13 May 2020, the employee could not access the teaching portal as the temporary lecturer had been employed and was using the portal to facilitate online learning. The employee took the non-access of the teaching portal as a sign that she had been suspended. On the same day, the Regional Director of the employer stated that the employee needed only return to work when the lockdown was over. This was due to the difficulty in communication and connectivity the employer had with the employee after attempting to rectify the connectivity issues and even offering to pay for the employee’s return to Bloemfontein. On 15 May 2020, the employee received a TERS UIF payment, which she assumed was a sign of her dismissal. On 8 June 2020, the employer sent an email to the employee stating that she should report for duty on 10 June. Further unanswered instructions to report for duty were sent via email on 18 June 2020 and 22 June 2020. Due to the last correspondence not being answered, the employer assumed that the employee no longer wanted to work for them. The employee referred the matter to the CCMA, where WhatsApp messages, various documentation, and the UIF payment were given as evidence. The employee reiterated that she assumed she had been dismissed as she had received the TERS/UIF payment. The CCMA noted that the employee had not acknowledged anything with regard to the employer’s communication to report for duty on 8 June 2020. The Regional Director of the employer-provided evidence that the employee had been advised only to return to work when the lockdown restrictions were lifted, that there was difficulty in contacting the employee (which was the reason for employing a temporary lecturer), and that the payment that was paid to the employee as part of a TERS payment that the employee received as part of the COVID-19 relief scheme. The Regional Director further stated that when contact was made, after explaining the condition upon which the employee would return to work, the employee did not enquire about her employment status and there was no notice of dismissal. Because the employee had not responded to the employer’s call to report for duty, the employer argued that the employee had not been dismissed. The employer showed that the last correspondence had not been acknowledged by the employee and, by failing to do so, the employer would assume that the employer had no intention of resuming employment. The CCMA found no credibility in the assumption of the employee that she had been dismissed or suspended and found that the employee understood what a TERS payment was. The CCMA also found no reason why the employee had failed to report for duty, after being requested numerous times to do so. Due to the plausible arguments and evidence brought by the employer, the CCMA determined that the employee had no intention of honouring the employment contract and had abandoned it. The finding in Mnguni v CCMA and others [2015] ZALC JHB227 was referred to, where it was stated that a resignation can be done verbally, in writing or implicitly. The question came down to if a reasonable person would have come to the conclusion that, based on the conduct shown by the employee, the employee no longer had the intention to fulfil their part of the contract. The CCMA found it reasonable under the circumstances that the employee showed a clear and unequivocal intention not to return to work and that the employer was correct in assuming implied resignation. It was also stated that implied resignation did not amount to dismissal. The application for reinstatement and backpay was dismissed. Why You Need to Attend the Mid-Year Labour Law Update If you would like answers to pressing matters such as the one above then you need to attend Global Business Solutions’ Mid-Year Labour Law Update.

In the case of Mtshweni v Smollan Sales and Marketing (Pty) Ltd – (2021) 30 CCMA , the employee, who was working as a merchandiser, was dismissed after a disciplinary hearing was held for failing to report for duty between 31 March and 16 April 2020. In the disciplinary hearing, the employee was first charged with misrepresentation for which she was found not guilty. She was also charged with unauthorised absenteeism and failure to communicate with her manager during that period. The employee was found guilty and dismissed. The matter was referred to the CCMA on the substantive fairness of her dismissal and reinstatement was requested. Before the CCMA, the employee stated she required transport to the workplace and showed evidence that she had communicated – via WhatsApp – to her manager on 27 March 2020, explaining that there was no transport availability due to the Government-enforced Lockdown. She did so by sending pictures and videos of the transport pick-up point, to which the manager did not respond. On 17 April, one of her managers phoned her and she received notice of her disciplinary hearing at her residence shortly after. The employee argued that it was not a case of not reporting for work or that she had no intention of reporting for duty. The employee’s evidence was that she could not get to work because of the transport restrictions. The employee explained that she had argued this in the hearing, but the employer suggested that the employee had no evidence of sending the WhatsApp messages. The Arbitrator found that an employee must contact an employer if they are unable to report for duty, which would be tested in this matter. The CCMA concluded that the Chairman of the hearing had incorrectly identified the date on which the employee communicated her inability to report for work due to transport problems, stating 27 April 2020 instead of 27 March 2020. Also, the WhatsApp messages that the employee provided were sufficient to dismiss the employer's claim that they had not been notified of the absenteeism. It was found that the Chairman’s findings did not acknowledge the Emergency Lockdown Regulations that were communicated to the public, including restrictions to business activity and the transport sector. The dismissal was found to be unfair and irrational. The employer was reinstated with back pay. Chairpersons have to be trained not to ride rough shots over decisions. Where an employee presents credible evidence they need to have regard to such, if not, the employee will be reinstated. Attend Global Business Solutions’ Mid-Year Labour Law Update (MLLU) If you would like to get answers to matters such as the one above then you need to attend our Mid-Year Labour Law Update. There are three dates to choose from.

The Basic Conditions of Employment Act (BCEA) sets out a number of notice periods that an employee needs to give if they tender their resignation. However, can an employee resign with immediate effect? The case of The Standard Bank of South Africa Limited v Nombulelo Cynthia Chiloane (Case No. JA85/18) [2020] ZALAC (5 November 2020) answers this question. Facts Of This Case Dealing With Resignation The employee was given notice to attend a disciplinary hearing for misconduct. The charge against the employee was that she had cashed a cheque without following proper procedures. On the day that the employee received the notice to attend the disciplinary hearing, she tendered her “resignation with immediate effect”. The employer assumed that the employee had to serve a four-week notice period. The employee argued that her letter of “resignation with immediate effect” ended the employment relationship completely. The hearing continued in her absence and the employee was subsequently found guilty and a sanction of summary dismissal was imposed. The employee approached the Labour Court on the legal point that the contract had ended on her immediate resignation. The Labour Court found that once an employee hands in her resignation, which indicates that the resignation is with immediate effect, the employment relationship comes to an immediate end. The employer has no right to insist that the employee serves his/her notice period. The Labour Court found the disciplinary hearing was therefore “null and void”.On appeal to the Labour Appeal Court (LAC), the LAC stated that in the event of either party terminating their relationship, the giving of four weeks’ notice was still applicable. Attend The Mid Year Labour Law Update Hosted By Global Business Solutions At the Mid-Year Labour Law Update, our host – labour law expert, Jonathan Goldberg – discusses cases such as these which have a significant bearing on your business and HR practices.

In development for the last 10 years or so, the entire Protection of Personal Information Act (POPIA) 4 of 2013 becomes effective on 1 July 2021. A lot of information has been published about how employers need to comply with this but how much do YOU really know about this Act? What Is The Purpose Of POPIA? POPIA has a number of purposes. The aim of the Act is to: To safeguard personal information Regulate the manner in which personal information may be processed Provide persons with rights and remedies to protect their personal information Establish voluntary and compulsory measures to ensure respect for – as well as to promote, enforce, and fulfill – the rights protected by this Act What Does The Act Apply To? This POPIA applies to the processing of personal information: a) This is entered in a record by or for a responsible party by using automated or non-automated means, and b) Where the responsible party is: i. Domiciled in the Republic of South Africa (RSA); or ii. Not domiciled in RSA but uses automated or non-automated means in the country. Who Is Excluded From POPIA? POPIA does not apply to the processing of personal information: a) During a purely personal or household activity b) That has been de-identified so that it cannot be re-identified c) By or on behalf of a public body and: i. Which involves national security ii. The purpose of which is the prevention, and detection, including assistance in the identification of the proceeds of unlawful activities and the combating of money laundering activities, investigation or proof of offenses, the prosecution of offenders, or the execution of sentences or security measures; d) By the Cabinet and its committees or the Executive Council of a province; or e) Relating to the judicial functions of a court How To Learn More About POPIA To learn more about POPIA, you need to attend our session on 19 May 2021.

In the case of Chikwangu v Screening and Earthworks (2021) 30 CCMA 7.1.1 & 1BALR 17 (CCMA), it is shown that if an employee signs a settlement agreement – and accepts severance pay – he is not able to lodge an unfair dismissal dispute further down the line. Facts Of This Unfair Dismissal Dispute An employee, a Diesel Mechanic, reported for work after the Level 5 Lockdown restrictions were lifted. Upon return, all artisans were called into the office one by one to discuss the financial situation of the employer. The employer informed all employees that owing to the Covid-19 National Lockdown the business faced challenges of securing work from clients. The employee alleged that he was unfairly dismissed during the meeting and referred a dispute to the CCMA.In the Arbitration the employer produced a settlement agreement signed by the employee. The issue in dispute was therefore whether or not parties had entered into a settlement or separation agreement to end the employment relationship, resulting in dismissal. The CCMA Commissioner accepted that the employee had signed the settlement agreement and that he had not objected to the severance package. The terms of the agreement were clear, and the employee had not claimed that he did not understand its contents or that he had been forced to sign. He therefore had no unfair dismissal claim. The application regarding the unfair dismissal dispute was dismissed. Settlement agreements and voluntary retrenchment packages are the first step before compulsory retrenchment. Attend Global Business Solutions’ Mid-Year Labour Law Update If you want to learn about more decisions, such as the one above- which will have a direct impact on your business and employee relations then you need to attend our Mid- Year Labour Law Update.

The updated Automotive Production and Development Programme – Phase 2 (APDP2) regulations were published in the Government Gazette dated 11 February 2021. These regulations become effective from 1 July 2021. No benefits will be claimable under APDP from 31 June 2021. The published regulations did not include any of the referenced information documents (Doc A, Doc B, or Form C2). The release of these documents is expected shortly together with the operational details of this gazette. Key Takeaways From The Automotive Production and Development Programme APDP2 wants to support the vision of the South African Masterplan of creating a “globally competitive and transformed automotive industry which actively contributes to the sustainable development of South Africa’s productive economy." This is in order to create prosperity for industry stakeholders and the broader society. Participation under this APDP2 is voluntary. The APDP2 consists of rebates and refunds of the relevant customs duties as legislated in the Customs Act. Production Rebate Certificates (PRCs) are duty credit certificates issued by ITAC. These certificates indicate the amount of customs duty that can be rebated using the Production Incentives (PI). This is an incentive available to final manufacturers of eligible products in South Africa. Such manufacturers must be B-BBEE compliant and registered taxpayers. Completed applications claiming PRCs must be submitted to ITAC no later than 12 months after the invoice for eligible products. Production Incentive (PI) value is determined by local value addition adjusted by the PI Factor, and the applicable customs duty: • The PI Factor for PRC claims applicable to specified motor vehicles: 50% • The PI Factor for PRC claims applicable to automotive components and tooling: 62.5% Eligible products under APDP2: • Specified motor vehicles fitted with an engine and gearbox manufactured in a licensed, special vehicle manufacturing warehouse in South Africa. • Specified motor vehicles not fitted with an engine or gearbox manufactured in a licensed, special vehicle manufacturing warehouse in South Africa. • Automotive components applicable to specified motor vehicles. • Automotive tooling. • Automotive components applicable to heavy motor vehicles, meeting all requirements. • Specified motor vehicles manufactured in a licensed, special manufacturing warehouse in South Africa, destined for assembly outside the borders of the Republic, must be in the form of kits that have untrimmed painted bodies with no parts assembled to the body (Exclusions apply here). Where the above product requirements are not met there are alternative requirements that may apply. Standard Materials: Qualifying value-added materials set forth in APDP2 Info Doc A. The SVA used in the manufacture of an eligible product will be 25% of the value of the standard material. The calculation of Company Specific Percentage (CSP) is calculated by ITAC and used by SARS to calculate the Volume Assembly Localization Allowance (VALA). Entities qualifying for CSP: • Motor vehicle manufacturers with a plant capacity of 10 000 units per annum may apply. • ITAC will calculate CSP and provide this to SARS only where a light motor vehicle manufacturer achieves a minimum production level of 10 000 units in the most recent four-quarter total. • A registered light motor vehicle manufacturer that introduces a new model to replace an existing model in its manufacturing plant. “Dead quarters” application to be dependent on the ITAC’s decision. • New motor vehicle manufacturers that are new entrants but only qualify for VALA where they have a production capacity of 10 000units per annum. VALA is used to reduce the value for customs duty purposes. Where a manufacturer uses the excess VALA in a quarter rebate duty on vehicles imported, SARS will reduce VALA by 20%. Specified motor vehicle manufacturers and component manufacturers are required to declare their imported component and material values in a form quarterly. Where incorrect information is supplied the document will become void and may result in the full purchase price of items being regarded as the imported content values. Values must be determined using the method and basis of calculation set out by the ITAC, where values must be entered as Rand amounts and not percentages or in a foreign currency. The gazetted regulations do not clarify the exact requirement for B-BBEE compliance levels, despite press statements referring to Level 6 for 2022 and Level 4 for 2023. We expect the Minister will clarify these details soon. Please find attached the published Government Gazette for your ease of reference. If you would like to discuss the impact of the Updated Automotive Production and Development Programme on your business, please do not hesitate to contact me on richard@globalbusiness.co.za .

‘Poor performance’ refers to the employee’s inability to discharge their contractual obligations as they do not possess the required skills/ability to do so. It is important to remember that what we are referring to here is a situation where the employee “cannot do the job” as opposed to “will not do the job”. An employer will frequently charge an employee with poor performance which is actually an act of misconduct. In this case, the employee's ability to do the job is not disputed. Rather what the employer has taken issue with is the employee’s “devil may care” attitude in doing something that is all too familiar to them. So, to summarise, you can bring these types of charges against an employee if: They do not meet a performance standard. The employee was aware – or was expected to be aware – of the standard. The employee was given a fair opportunity to meet the standard. Dismissal must be the appropriate sanction for the offense. How To Learn More About Handling Poor Performance Issues If you want to learn more about handling poor performance issues – as well as other aspects of absenteeism and leave abuse – then you need to attend our Managing Absenteeism and Leave Abuse webinar.