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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 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.

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.

‘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.

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.

According to section 22 of the Basic Conditions of Employment Act (BCEA), a “sick leave cycle” means a period of 36 months of employment with the same employer. This period immediately follows: An employee’s commencement of employment; or The completion of that employee’s prior sick leave cycle. During every leave cycle of this nature, an employee is entitled to an amount of paid sick leave equal to the number of days that the employee would normally work during a period of six weeks. During the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked. During an employee’s first cycle, an employer may reduce the employee’s entitlement to sick leave by the number of days’ leave taken. An employer must pay an employee for a day’s leave: The wage the employee would ordinarily have received for work on that day; And on the employee’s usual pay day. An Agreement About Sick Leave An agreement may reduce the pay to which an employee is entitled for any day’s absence if: The number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay; and The employee’s entitlement to pay: – For any day’s sick leave is at least 75% of the wage payable to the employee for the ordinary hours the employee would have worked; and – For sick leave over the sick leave cycle is at least equivalent to the employee’s entitlement. Don’t Let Employees Pull The Wool Over Your Eyes! Very often, employees will try to pull the wool over their eyes and try to apply for sick leave – when there’s no reason for this. Join us for the Managing Absenteeism and Leave Abuse course and never again be fooled by employees who are chancing their arms.

In the 3IR, the hierarchical structures underpinned by a centralised command and control culture of managers worked for many organisations, despite themselves. One reason for this is that consumers had limited choices and the pace of change was slow. Products and services changed but there was no real transformation. The top banks, the biggest retail outlets, and the household cinema names decided what they would push into the marketplace based on “inside-out” business strategies. One would be forgiven to have labeled many of the executives of the said businesses as mutual admiration societies where they were more concerned with their self-centered egos than with the client and customer needs. This reality is evident when one engages with executive teams and managers who are still running businesses, even though they have not transformed themselves. The fruits of such executive teams are conflict, self-centredness, selfish ambition, and a lack of trust. The reason – in the 4IR the structures are becoming flatter, collaborative teams that are client-centric and build outside-in business strategies are needed, and high levels of trust determine the agility of to respond to change. The 3IR manager who is incapable of becoming a 4IR leader will ultimately not survive and if the organisation allows the 3IR manager to continue to operate, the result will be employees who are disengaged, don’t have a sense of belonging, and will ultimately bring the organisation to its knees. Building Sustainable Businesses What then should organisations do in order to turn the corner into building sustainable businesses in the 4IR? The answer is that they need to build both the character and the competence of their leaders and then cascade this across and downward through the organisation. Generally speaking, competence is present in the form of skills, knowledge, and experience (although skillsets required are changing very quickly). What is missing is trust, managing and leading with EQ, a lack of client-centric thinking, and decisions that are still based on quantitative data only rather than a combination of quantitative and qualitative human-centric information. Empathising with clients, customers and employees is a capability that largely escapes many executives and managers who are in it for themselves rather than leveraging the principles of exponential return that can come from putting the interests of others first. It is my view that many organisations that have been victims of the 4IR (which has been accelerated by C19) can trace their demise back to the executives who were more interested in their comfort than their character. How do we know this? Well, take a look and see the absence of EQ and transformational leadership training in the WSPs of businesses. Despite trust being at an all-time low as a result of retrenchments, remuneration cuts, personal loss, and the like, the absence of these initiatives is deafening. If you would like to get in touch with me, please don’t hesitate to email me at john@globalbusiness.co.za.

The Employment Equity Act (EEA) provides guidelines on how to deal with unfair discrimination and recourse for employees who suffer the consequences of unfair discrimination. It is about promoting equal opportunities for all employees and seeks to redress imbalances of the past that were experienced by historically disadvantaged individuals (who are known as designated groups). Section 60 obliges the employer to promote awareness and act immediately when learning of possible discrimination: (1) If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer. (2) The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act. (3) If the employer fails to take the necessary steps referred to in subsection 2, and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision. (4) Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act. Non-receipt of Certificate Of Compliance The Employment Equity Act Amendments which are expected to be promulgated mid 2021 also propose that employers should not receive a certificate of compliance should they be found to have unfairly discriminated against employees. This certificate of compliance will prohibit employers from doing business with the state in terms of Section 53 of the EEA. There are no fines imposed for non-compliance with Chapter 2 of the EEA (unfair discrimination), however, the Act states that the CCMA and/ or Labour Court many make any appropriate award against the employer. Hence, aggrieved employees can refer unfair discrimination claims to the CCMA and/or the Labour Court. The question now arises as to what recourse an individual can have against a perpetrator of unfair discrimination who is NOT an employee of the same employer (i.e. an external party such as a contractor or visitor to the workplace). This is where PEPUDA steps into the gap and enables litigation against such third parties. Whichever way you look at it, employers will be negligent not to design, implement, create awareness, enforce fair discrimination, and prohibit harassment of any person, albeit a fellow employee or otherwise. If you would like to discuss the above further – or any other employment equity matters with me – please don’t hesitate to contact me at thembi@globalbusiness.co.za .

Human resources (HR) professionals and practitioners are being called on to broaden their strategies and plans. In addition, HR is being called upon to address the entire length, breadth, and height of “people”: People as “employees” People as “contractors” People as part of the human cloud People as human beings People as talent. This requires that a number of things be put in place: The business strategy needs to be fully understood, The design of the HR strategy needs to be carefully aligned with the business strategy, The various workforce models available have to be evaluated, The competency requirements over the next five years need to be mapped, Policies and procedures need to be re-engineered, Employment contracts must be significantly revisited, and The entire employment life cycle has to come under the spotlight. Of course, don’t forget that to add to this complexity, the ever-changing labour laws and related statutes come into play – pending LRA and EEA amendments, COIDA amendments, UIF amendments, POPI, AARTO, and case law. Why You Need to Register for the Strategic HR Management Course In the Strategic Human Resources Management Course, we draw on global research and thought leaders to bring you a thought-provoking session that also looks at models and frameworks for HR strategy development.