CERTIFICATE OF SERVICE REQUIREMENTS ON TERMINATION OF CONTRACT OF EMPLOYMENT

Employers must exercise caution when sharing information about former employees, as unauthorised disclosures or inaccurate statements can result in significant liabilities.

Risks Associated with Providing References Beyond Statutory Minimum Requirements

1. Disclosing an Employee’s Personal Information Without Consent

Sharing an employee’s or former employee’s personal details with a third party and/or a prospective employer—without explicit consent—may violate the Protection of Personal Information Act (POPIA) and contractual agreements. Employers should ensure that their internal policies align with privacy laws to prevent unauthorised disclosures.

2. Providing Legally Indefensible Information to a Third Party

Issuing statements about an employee's past performance—such as labelling them a "poor performer"—without appropriate documentation or due process can lead to legal repercussions. Employers must ensure that any reference provided is fact-based and supported by objective records.

Potential Employer Liabilities

Failure to adhere to legal and procedural requirements can result in severe consequences, including:

• Administrative fines up to R10 million and imprisonment up to 10 years for unlawful data processing.

• Employees may pursue claims for damages, including reputational harm, loss of income, or privacy violations.

• Employers may be held accountable for staff members who unlawfully process personal data.

• Providing false, unsubstantiated, or damaging statements can result in defamation claims.

• Employees may take legal action via the CCMA/Bargaining Council or Labour Court, alleging unfair labour practices if proper processes were not followed.

• Mishandling references can lead to loss of trust, negative publicity, and strained business relationships.

• Defending against civil claims or regulatory actions can be costly, with potential compensation orders for affected employees.

• Unjustified disclosures may breach an individual’s right to dignity and privacy under South African law.

Essential Details for a Certificate of Service

The following information must be included in an employee's Certificate of Service:

1. Full name of the employee - The employee’s full legal name, exactly as recorded in company documents.

2. Employer’s name and physical address - The official designation and physical location of the employer.

3. If applicable, details regarding any bargaining council regulations or sectoral determinations governing the employer’s operations

4. Start date of employment - date the employee commenced work.

5. End date of employment - date of termination.

6. A concise job title or brief summary of the employee’s duties at the time of departure and/or termination.

7. The final remuneration amount, specifying the salary or wages at termination.

8. Reason for termination and/or why the employment ended, included only upon the employee’s request.

Employers should follow clear, consistent, and legally compliant practices when providing references to protect both their business and former employees. Here are some key best practices:

1. Provide Only Factual and Verifiable Information

Stick to objective details such as employment dates, job title, and responsibilities.

Objective Scenarios - These scenarios rely on documented records and factual information.

1. Employment Verification

• An employer confirms an ex-employee’s job title, employment dates, and responsibilities without offering opinions on performance.

  
  

  Example: "John Doe was employed as a Senior Hairstylist from January 2018 to March 2024. His responsibilities included cutting, colouring, and styling of hair."

2. Performance-Based Reference (With Supporting Records)

• An employer provides a reference based on documented performance reviews or measurable achievements.

  
  

  Example: "Jane Smith consistently met her services and retail targets, achieving a 20% increase in revenue in her last fiscal year."

3. Disciplinary History (If Requested and Documented)

• An employer discloses formal disciplinary actions that were properly recorded and legally defensible.

  
  

  Example: "Mark Johnson received a written warning in June 2023 for repeated tardiness, as documented in his personnel file."

4. Legal Compliance (POPIA & Data Protection)

• An employer ensures that only authorised information is shared, avoiding personal details without consent.

  
  

  Example: "We can confirm that Sarah Adams was employed from 2019 to 2023. Further details require her written consent."

Avoid subjective opinions or unverifiable claims about performance.

Subjective Scenarios - These scenarios involve personal opinions or unverifiable claims, which may lead to legal or reputational risks.

1. Unverified Performance Assessment

• An employer states that an ex-employee was a "poor performer" without documented evidence.

• This could lead to defamation claims if the statement is not backed by formal records.

  
  

  Example: "John struggled with managing his time and was not a strong team player."

2. Personal Opinions on Work Ethic

• An employer shares subjective views on an employee’s attitude or behaviour.

• If the opinion is negative and lacks supporting documentation, it may be challenged legally.

  
  

  Example: "Jane lacked motivation and was difficult to manage."

3. Character References Without Evidence

• An employer provides personal opinions on an employee’s integrity or reliability.

• If the reference is overly positive or negative without factual basis, it may mislead the prospective employer.

  
  

  Example: "Mark was an exceptional leader and always went beyond expectations."

4. Speculation on Reasons for Leaving

• An employer assumes why an employee left rather than stating the official reason.

• Misrepresenting the departure could lead to legal disputes.

  
  

  Example: "Sarah left due to conflicts with management." (Unless documented, this is speculative)

Employers should stick to objective, fact-based references and avoid subjective opinions that could lead to liability. If asked for additional details, they should ensure written consent from the employee and verify all statements with documented records.

2. Obtain Employee Consent Before Sharing Personal Information

Ensure compliance with data protection laws (POPIA) by securing written consent before disclosing personal details.

3. Maintain a Neutral or Minimal Reference Policy

Some employers opt for a basic reference that includes only employment dates and job title to minimise legal risks.

4. Avoid Defamation and Unfair Statements

Negative references must be fact-based and legally defensible to prevent defamation claims. If misconduct or poor performance is mentioned, ensure due process was followed.

5. Ensure Consistency in Reference Policies

Apply the same reference standards to all employees to avoid discrimination claims. Communicate the company’s reference policy clearly to employees.

6. Protect Confidentiality and Employee Rights

Do not disclose sensitive personal data (e.g., medical records) without explicit consent. Ensure references align with privacy regulations and company policies.