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In the circumstances it is advisable for employees’ written consent to be secured. dismissal was an appropriate sanction for the contravention of the rule or standard. I AM AN HR ASSISTANT AND I WAS DISMISSED FOR GROSS MISCONDUCT IN AUG 2013 FOR ISSUING A WARNING INCORRECTLY. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair. Labour Guide. counselling the employee requires to render satisfactory service. Judicial Conduct Committee finds prima facie gross misconduct by Judge Mushtak Parker. The applicant contends that the committed a gross irregularity, arbitrator alternatively, misconduct in the conduct of the arbitration proceedings by failing to apply his mind to the evidence that was led and the applicable legal principles to be applied in relation to the imposition of sanction. South African courts seem to take this to heart. This does not need to be a formal enquiry. A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. POPI and consent - don’t get caught in your own net, By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr. The misconduct must be of such a grave nature that it makes a continued employment relationship intolerable; and3. 4. The Act recognises three grounds on which a termination of employment might be legitimate. Guidelines in cases of dismissal arising from ill health or injury. This Code is not intended as a substitute for disciplinary codes and procedures where these are the subject of collective agreements, or the outcome of joint decision-making by an employer and a workplace forum. Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. POPI distinguishes between the collection, storage and processing of personal information and special person information. In this situation, the employee can be summarily (instantly) dismissed. Second Respondent ZAYD MINTY Third Respondent Heard: 19 April 2018 Delivered: 26 April 2018 Summary: Review – misconduct – gross negligence and dishonesty. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?”. An employee should be dismissed only if he/she has been found guilty of gross misconduct. Get your South African law questions answered by Experts. If the gross misconduct was as a result of a capability issue for instance where the likelihood of the employee repeating the mistake is limited. The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. Gross misconduct often is decided on a case-by-case basis, except in cases of criminal or illegal actions, such as embezzlement and violent behavior that … 6. The implication is that not all acts of dishonesty make the employment relationship intolerable and therefore merit dismissal.Â, Adding to the complexity of the debate is the fact that the concept of trust is a tricky one, often difficult to define. STEENKAMP J . Parker faces impeachment on two grounds. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. A At the time of his dismissal, the employee was in charge of dispatch at the Cape Town office. The real Life on Mars squad: Six police officers guilty of gross misconduct joked about migrants drowning, used a lewd video to taunt a black colleague and spouted vile homophobic abuse Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union. Should liability include or be limited to "gross negligence", "wilful misconduct", or both? Labour Guide. Special personal information includes e.g. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. Disciplinary procedures prior to dismissal. What is misconduct? ... and the role of media to tell and record the story of South Africa … Written consent is not expressly required. Judgment. Gross negligence is said to have occurred if the employee is persistently negligent, or if the act or omission under consideration is particularly serious in itself. The Protection of, POPI distinguishes between the collection, storage and processing of personal information and special person information. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider. However, like any other act of misconduct, it does not always deserve dismissal. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees. Any person who is determining whether a dismissal for misconduct is unfair should consider: whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and. dismissal was an appropriate sanction for not meeting the required performance standard. Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. This may be appropriate if the position is a completely new role with different skills required or if the employee has gained additional experience or qualifications. 3. The cause of the incapacity may also be relevant. Any person determining whether a dismissal arising form ill health or injury is unfair should consider: whether or not the employee is capable of performing the work; and. When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee's circumstances, including: the circumstances of the infringement itself. Either way, the uncertainty makes it dangerous for employers to continue to rely on what used to be tried and trusted legal principles when dismissing employees. What Constitutes Gross Misconduct in The Workplace – Infographic May 22, 2019 April 3, 2019 by Tom Street There are certain actions or behaviors that are totally unacceptable in a workplace which will result in an immediate sack without any prior notice or warning. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR. The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. 3. Copyright © 2020. The courts have frequently supported this view and have therefore often upheld employer's decisions to dismiss employees who have been guilty of gross dishonesty in the workplace. They were as such each charged with gross dishonesty and dismissed. The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration. This could involve: Harassment; Bullying; Fighting; Aggressive or intimidating … Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them. The material in this work is copyrighted. It has been pointed out that the code of good practice recommends dismissal for "gross" dishonesty and not all dishonesty. The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. What is Gross Negligence? 3.The key principle on this Code is that employers and employees should treat one another with mutual respect. Copying and/or transmitting portions or all of this work without permission may be a violation of applicable law. In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN JUDGMENT Case no: C 871/16 In the matter between: CITY OF CAPE TOWN Applicant and SALGBC First Respondent A SINGH-BOOPCHAND N.O. Summary: Review – LRA s 145 – misconduct – gross negligence – ABSA v Naidu followed – dismissal fair – award reviewed and set aside. 5. Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. Not all misconduct will justify the sanction of a dismissal, only serious misconduct will. Three of these requirements are:1. The South African government sets its sights on licensing content streaming services. THERE WAS ALSO SOME HEAR SAY EVIDENCE THAT WAS … ARTICLE TAGS. The employer's case in the Labour Appeal Court was that the sanction of dismissal was appropriate for the misconduct of which the employee was guilty. In Toyota South Africa Motors (Pty) Ltd v Radebe and Others,25 this Court held: The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative of fellow employee. There are countless examples of workplace misconduct which may also amount to criminal offences, such as theft, fraud, corruption and bribery … the list goes on. In cases where the dismissal is not automatically unfair, the employer must show that the reason for dismissal is a reason related to the employee's conduct or capacity, or is based on the operational requirements of the business. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including -. Africa law and/or transmitting portions or all of this work without permission may temporary! Injured at work or who are injured at work or who are injured work... 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