Mar 24, 2022 | Human Resources
On the 18th March 2022, the Minister of Employment and Labour published the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (The Code). This repeals the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, 2005.
The Code seeks to cover a wider scope of harassment in the workplace, including sexual harassment. The Code sets out the different types of harassment as follows:
- Physical harassment includes physical attacks, simulate
d, or threatened violence, or gestures (such as raising a fist as if to strike a person or throwing objects near a person).
- Verbal bullying may include threats, shaming, hostile teasing, insults, constant negative judgment, and criticism, or racist, sexist or LGBTQIA+ phobic language.
- Psychological harassment in the workplace may be associated with emotional abuse and involves behaviour that has serious negative psychological consequences for the complainant/s such as is often the case with verbal abuse, bullying and mobbing.
- Slandering or maligning an employee or spreading malicious rumours.
- Conduct which humiliates, insults or demeans an employee.
- Withholding work-related information or supplying incorrect information.
- Sabotaging or impeding the performance of work.
- Ostracising, boycotting, or excluding the employee from work or work related activities.
- Persecution such as threats, and the inspiration of fear and degradation.
- Intolerance of psychological, medical, disability or personal circumstances.
- Surveillance of an employee without their knowledge and with harmful intent.
- Use of disciplinary or administrative sanctions without objective cause, explanation, or efforts to problem solving.
- Demotion without justification.
- Abuse, or selective use of, disciplinary proceedings.
- Pressuring an employee to engage in illegal activities or not to exercise their legal rights.
- Pressuring an employee to resign.
The Code encourages employers to adopt a zero-tolerance attitude toward harassment in the workplace. Employers must create and maintain a working environment in which the dignity of employees are respected and should adopt a
harassment policy, ensuring it is effectively communicated to all employees.
Employers should develop clear procedures to deal with harassment which enable the resolution of problems in a gender-sensitive, confidential, efficient, and effective manner. When an employee has reported an alleged incident of harassment or laid a complaint, the employer is obliged to investigate the allegation and advise the complainant of the procedures available to deal with the harassment. In terms of the Code, when an allegation of harassment has been brought to the attention of the employer, the employer must
- consult all relevant parties;
- take the necessary steps to address the complaint in accordance with the Code and the employer’s policy; and
- take all necessary steps to eliminate the harassment.
Employers who fail to take all necessary steps to eliminate harassment within a reasonable time may render themselves vicariously liable, even if the harassment consists of a single incident.
Mat Fforde
Cell: +27 (0)83 357 8390
Jan 30, 2020 | Human Resources
South Africa has 13 official public holidays and in 2020, enjoys 14 as one falls on a Sunday.
© Brian Jackson – 123RF.com
The public holidays for 2020 are:
- New Year’s Day: Wednesday, 1 January
- Human Rights Day: Saturday, 21 March
- Good Friday: Friday, 10 April
- Family Day: Monday, 13 April
- Freedom Day: Monday, 27 April
- Workers’ Day: Friday, 1 May
- Youth Day: Tuesday, 16 June
- National Women’s Day: Sunday, 9 August
- National Women’s Day Holiday: Monday, 10 August
- Heritage Day: Thursday, 24 September
- Day of Reconciliation: Wednesday, 16 December
- Christmas Day: Friday, 25 December
- Day of Goodwill: Saturday, 26 December; and
- New Year’s Day: Friday, 1 January 2021
National Women’s Day (9 August) is the only public holiday that falls on a Sunday. The next day, Monday 10 August, becomes an additional public holiday in terms of the Public Holidays Act. Both 9 August and 10 August are thus public holidays. Two consecutive public holidays can have a significant impact on working arrangements and shifts, especially in workplaces that run a 24/7/365 operation.
Employers should consider the effect on the workplace and implement measures to address the impact on work. Employers should also consider collective agreements and Bargaining Council agreements that impact public holidays, working arrangements and shifts. Section 18 of the Basic Conditions of Employment Act, No 75 of 1997 provides that an employer may not require an employee to work on a public holiday except in accordance with an agreement. It also prescribes the calculation for wages for work on the day.
In terms of section 2(2) of the Public Holidays Act, any public holiday shall be exchangeable for any other day which is fixed by agreement or agreed to between an employer and employee.
Employees who are on strike on public holidays are not entitled to any remuneration. They are only entitled to be remunerated for public holidays if they “ordinarily worked” on the public holiday (see section 16 of the Basic Conditions of Employment Act, No 75 of 1997). As they would not ordinarily work on any day during the strike, they would not ordinarily work on a public holiday that falls in the strike period. Thus, they are not entitled to remuneration for the public holiday during the strike.
Employers can expect requests for additional leave days on Monday, 15 June, Friday 25 September and around Wednesday, 16 December as these dates are convenient to employees who wish to create long weekends.
Nov 1, 2019 | Human Resources
Qualifications fraud landed in the public spotlight during 2014 when media outlets reported that a number of high profile South Africans had misrepresented their qualifications. In 2015, the South African Fraud Prevention Services (SAFPS) recorded a significant number of fraud cases relating to the falsification of qualifications. According to figures released by LexisNexis, the most prevalent forms of qualifications fraud are non-existent matric certificates, inflated education, unfinished degrees and fake degree certificates.
© Matthew Benoit – 123RF.com
The consequences for employers who hire individuals who are not appropriately trained or qualified can be catastrophic. Not only does it drain the bottom line and management time in terms of training expenses and performance management, it can also be downright dangerous, particularly for employers who conduct operations that require highly skilled and trained employees.
Offence and repercussions
The recently enacted National Qualifications Framework Amendment Act, 12 of 2019 (Qualifications Act) makes it a criminal offence for individuals to misrepresent their qualifications, or for institutions who do not hold requisite accreditations to enrol students into their institutions. The Qualifications Act prescribes that such a misrepresentation is punishable by a fine or a period of imprisonment not exceeding 5 years, or both.
The Qualifications Act also creates a framework within which registers will be created for professional designations, misrepresentations and fraudulent qualifications by the South African Qualifications Authority (SAQA). This means that in addition to criminal sanctions, those convicted under the Qualifications Act will also be “named and shamed”.
The Qualifications Act also criminalises the wilful misrepresentation or publication of qualifications. Practically, this means that offences under the Qualifications Act are not only limited to misrepresentations on CVs for employment seeking purposes, but also include any wilful misrepresentations that may occur on social media platforms such as Facebook, Instagram, Twitter or LinkedIn.
All members of the public are able to report offences under the Qualifications Act, meaning that even a follower on social media who catches an individual in a lie is able to report it to the local authorities.
Employer obligation
There are a few important aspects of the Qualifications Act relevant to employers. Employers are obliged to verify qualifications with the national learners’ records database before applicants are hired. If applicants are not registered, employers are required to inform SAQA and request a verification process. SAQA is required to inform the enquirer and the holder of the qualification or part qualification of its findings, which if challenged, may be referred for review.
Aug 20, 2019 | Human Resources, Leadership
DRAGAN TODOROVIC/GETTY IMAGES
“We have a great culture.” We have all heard it. We have all said it. But what does that mean?
Ping-Pong tables, free meals, and beer on tap? No.
Yoga, CrossFit classes, and massage chairs? I so need that, but no.
The promise of being part of a hip, equity-incentivized, fast growing team? Closer, but still no.
Culture is often referred to as “the way things are done around here.” But to be useful, we need to get more specific than that. I’ve been working in HR for over twenty years, and the best companies I’ve worked with have recognized that there are three elements to a culture: behaviours, systems, and practices, all guided by an overarching set of values. A great culture is what you get when all three of these are aligned, and line up with the organisation’s espoused values. When gaps start to appear, that’s when you start to see problems — and see great employees leave.
These gaps can take many forms. A company might espouse “work-life balance” but not offer paid parental leave or expect people to stay late consistently every night (a behaviours-system gap). You might espouse being a learning organisation that develops people, but then not give people the time to actually take classes or learn on the job (system-behaviours gap). Maybe your company tells people to be consensus-builders, but promotes people who are solely authoritative decision makers (behaviour-practices gap).
Gaps like these are never solved by turning culture over to a Organisational Development Manager or pulling together culture committees. Likewise, inspirational leadership, the repetition of value statements, and letting people be themselves are important, but they are by-products of a healthy culture, not the drivers of one.
How, then, do we repair a flagging culture? A place to start is by reviewing the behaviours, systems, and practices in place in your company.
Behaviours
A common culture-building practice is the creation of value statements. But the real test is how leaders behave; how they enact these values, or don’t. People watch everything leaders do. If leaders are not exhibiting the behaviors that reflect the values, the values are meaningless.
Employees also need clarity, but of a different kind. Every employee I have managed would give up their so-called perks for one thing: clear expectations. Given your organisational values, which behaviours consistently get rewarded? Which behaviours lead to promotion?
Spend the time identifying the behaviours and skills that express each of your organisational values. For example, if I saw someone exemplifying the value of “teamwork,” what would she be doing? What would she not be doing? One organisation might identify teamwork behavior as “collaborates effectively through helping others.” Another might interpret a teamwork behavior as “collaborates effectively through encouraging productive disagreements.” Both can be done, but which behavior is expected and encouraged at one company vs. another?
Clarifying expected behaviors for employees holds leaders accountable as well. Does a manager value face-time more than outcomes? Is a leader always ten minutes late to a meeting? How often does starting a meeting five minutes late roll into people showing up unprepared? These are the real-world behaviors of culture and values. Before we realize it, the organisation becomes known for late meetings, face-time, or reactive and apathetic leadership. Employees become reactive. And then we wonder why we have an attrition problem.
Systems
Every process that is created, every system installed, every technology that is used, every structure that is designed, every job title that is given will reinforce or dilute the culture. There are five key systems that are important to the overall cultural system:
Recruitment. Clarity around behavioural expectations allows us to bring much-needed clarity to the recruiting process. Instead of the common default to recruiting for “cultural fit” — which in practice is usually an excuse for recruiting people we find likable or similar to us — we can look for behaviors that are cultural complements. This moves us away from the tendency to recruit people who think the same and towards a company built on diversity of backgrounds, perspectives, and ideas that complement culture while also enriching it.
Strategy and goal setting. These activities do two things, culture-wise: rally people around similar goals while also providing guidance on outcomes employees are expected to produce.
Assessing. How are behaviours assessed? How often are they reviewed? Is feedback shared consistently, and is it weighted based on who said it? Lack of trust or questions about what behavioural standards will be used will create political and fear-based environments.
Developing. When employees feel that professional development, feedback assessments, or engagement surveys are irrelevant, it’s usually because the questions don’t tie back to what the organization actually reinforces and rewards. Culture problems can also arise when a “safe learning environment” turns into a way to punish employees for low scores rather than a way to help them grow.
Rewarding. What is the criteria to become a manager, regional manager or director? What are the expected behaviors that earn a person said title? What technical and leadership skills are needed? These are all expressions of culture and values, but too often they are perceived as random. Employees do not have to be concerned about being friends with the CEO, competing with each other, and other political challenges when these processes are viewed as transparent and fair.
A good culture sets these processes up so they feed into and off of each other.
Practices
Practices include everything from company events, running meetings, feedback processes, to how decisions are made.
Do you have repeatable decision-making processes in place? Are meeting participants expected to be collaborative and consensus-driven, or is some conflict OK? What should managers talk about in performance reviews?
Practices need to change as the company changes — as it grows, reorganises, or faces new threats. Once-useful practices can quickly become stale, meaningless, or even counter-productive. If the original intent of an off-site retreat was to help teams bond, what needs to shift now that the company has tripled in size?
Great organisations and leaders know that the culture stuff is the hard stuff. Culture takes time to define.
It takes work to execute. Yet, if the time is spent (1) really understanding the behaviours expected throughout the organization; (2) identifying the systems and processes that will continue to help those behaviours be expressed and sustained; and (3) shaping practices that help employees and the organisation become better, then you can close your culture gaps, and stop your best people from saying, “I know it’s a great culture, but I am leaving.”
Aug 6, 2019 | Human Resources
In the recent case of Numsa obo Nomanyane and another v Grupo Antolin (Pty) Ltd, heard before the Metal Engineering Industry Bargaining Council (MEIBC), the Commissioner was tasked with determining whether a fixed-term contract of employment must be in writing or not.
© alexskopje – 123RF.com
Grupo Antolin (the employer) had employed two employees on a fixed-term contract to temporarily replace two of its permanent employees who were on maternity leave. The employer subsequently informed the two employees that their contract of employment had come to an end. At the time, the employees had been employed for a period of four months.
The fixed-term contract between the employer and the employees was a verbal contract, and the verbal contract did not provide for the period of employment. When the employer informed the employees that the contract had come to an end, the employees referred an unfair dismissal dispute to the MEIBC.
The employees alleged that they had been dismissed, while the employer alleged that there was no dismissal, but that the fixed-term contract had come to an end. The employees’ period of employment was not recorded anywhere. The commissioner, in making his ruling, relied mainly on the provisions in s198B of the Labour Relations Act, No 66 of 1995 (the Act), as amended. Specifically sections 198B(5) and (6), which state as follows:
(5) Employment in terms of a fixed-term contract concluded or renewed in contravention of subsection (3) is deemed to be of indefinite duration. (6) An offer to employ an employee on a fixed-term contract or to renew or extend a fixed-term contract, must a) be in writing; and b) state the reasons contemplated in subsection (3)(a) or (b).
The Commissioner held that the Act provides that a fixed-term contract must be in writing. The Commissioner reasoned that the objectives of the Act are to ensure, amongst others, that vulnerable employees are protected and that a purposive interpretation must be applied when dealing with the Act.
A purposive interpretation entails that the Act ought to be interpreted in a manner that promotes the spirit, purport and object of the Bill of Rights. The Commissioner then, with reference to s198B(5) of the Act, held that because the fixed-term contract entered into between the employer and the employees was in contravention of s198B(3) of the Act, the consequence thereof was that the contract was for an indefinite period.
The termination of the contract was found to have constituted an unfair dismissal in terms of the Act and the employees’ were awarded reinstatement with backpay.
Jun 19, 2019 | Human Resources, Labour News
Contrary to popular belief, companies may be within their rights to secretly record conversations with employees and use that information against them in a court of law. However, the reverse is also true.
Nicol Myburgh, head of the Human Resource Business Unit at CRS Technologies, says this has the potential to significantly change the dynamic in the workplace.
According to Section 4 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA), it is not illegal to secretly record a conversation you are a party to. But it is still illegal to do so as a way of intercepting communications to commit an offence, for example obtaining a person’s bank account information.
“The argument that recording these conversations infringes on an employee’s (or employer’s) right to privacy is outweighed when using the recording in court is in the interests of justice. Of course, there is nothing prohibiting the addition of an explicit clause in employment contracts that mitigates against the risk of having communications intercepted.”
Technology has made it incredibly easy to record conversations without other parties being aware of it. Most smartphones and tablets come standard with audio recording features, making it virtually undetectable when somebody runs the app and puts the phone or tablet out of sight.
Courts do not hold privacy rights as absolute
“Often, these conversations can be used as evidence in disciplinary hearings and other disputes even before they go to the CCMA or court. Further complicating matters is that courts do not hold privacy rights as absolute. Instead, they take other factors into account that can trump privacy rights.”
An example of this is in Harvey v Niland, where evidence was obtained by hacking into the respondent’s Facebook account. Evidence can, therefore, be presented in various forms and not necessarily only in the form of an audio recording.
Obtain recordings legally
Nevertheless, it remains in the best interests of either party to obtain recordings legally. From an employer perspective, a fair process must be followed, with the employee being given an opportunity to respond to the evidence presented against them.
“From a legal perspective, it should also be noted that either party can record a conversation that they are part of. But if you are a third party, you need informed consent from one of the other parties to legally record that conversation. It is often this consent that confuses people into thinking all parties must agree to have a discussion recorded.”
Of course, if the recording is inaudible then it cannot be admissible. Myburgh says that employers or employees, therefore, need to ensure that the audio can be heard and that the data is stored in a safe place to avoid it being lost, deleted, or edited in a way that will also make it inadmissible.
“Companies are operating in a dynamic, technology-driven environment. It should always be assumed that any conversation or meeting will be recorded, like assuming all work email will be read by a supervisor. In this way, both the employee and employer can ensure no mismanagement takes place.”
