Sep 25, 2019 | Labour News, Training
Bullying as a tactic for most people is either confined to playgrounds where children hang out, or the internet where trolls sling all types of derogatory comments. But bullying is equally prevalent in the workplace with dire consequences for both victims and organisations. But discerning the difference between bullying antics and unfair labour practices is often difficult to do, says Advocate Tertius Wessels, Legal Director at Strata-g Labour Solutions.
“Looking at the labour dispute of Peter Moyo, Old Mutual’s embattled CEO. One can understand why some people have lashed out at Old Mutual, accusing it of employing bullying tactics, after the court found his previous dismissal to be unfair. Unfair labour practices are clearly defined and therefore, easier to challenge. But sometimes an employer is simply a biased manager; while this makes them a bad leader, it does not constitute him or her as a bully,” explains Wessels.
Definitions
The definition of bullying is repeated actions and practices that are directed to one or more workers, which are all unwanted by the victim, and may be done deliberately or unconsciously. However, these actions do cause humiliation, offence and distress, which ultimately may interfere with job performance and create an unpleasant working environment.
Unfair labour practices on the other hand are specifically defined in terms of the Labour Relations Act and generally relate to an unfair act or omission that arises between an employer and an employee.
Struggling to define which ambit bullying falls under legally is only one part of the problem. Even in organisations where processes to deal with bullying are in effect, the outcomes are not always favourable to the victims, says Wessels.
“According to findings by the Workplace Bullying Institute SA, where Human Resource (HR) intervened, 37% of those accused of bullying retaliated, while 31% of complainants lost their job. In 18% of cases, HR took no action and when it did, only 2% of cases reached a fair and just resolution; the remaining 12% of occurrences went unreported,” Wessels explains.
While “bullying” is yet to be included in labour legislation, recent cases in the CCMA and our Courts highlighted the zero-tolerance approach for bully behaviours such as hate speech and racism.
But even the law fraternity is susceptible to bullying.
Survey insights
A survey conducted by the International Bar Association revealed that bullying is prevalent in South African legal workplaces, with 73% of South African female respondents admitting to having experienced bullying and 42% of male respondents felt the same.
The effects of bullying are well documented, with the Trade Unions Congress reporting that nearly half (46%) of people say that bullying harms their performance at work, and the same amount believe it hurts their mental health. More than one in three (36%) people leave their job because of bullying, thereby disrupting career progression.
A University of the Free State study reported that the effects of persistent or intense bullying could sometimes amount to post-traumatic stress disorder.
Bullying can also affect a company’s bottom line with lower productivity, higher absenteeism and staff turnover but despite all of this, employers when dealing with bullying tend to focus more on the victim, rather than the perpetrator.
The Workplace Bullying Institute SA found that the top five reasons attributed to bullying eventually stopping are 37% of victims are often fired or discharged, 33% of them resign (constructive dismissal), and 17% of complainants are transferred to another department. But only 4% of bullies are punished, and 9% transferred out.
“Employers should offer life skills such as emotional intelligence, assertiveness and conflict handling. They should, in a clear, unambiguous language assure employees their organisation will not tolerate bullying. While it remains complex to differentiate between unfair labour practices, unfair discrimination and/or harassment, our courts have proved that as a country, we do not tolerate bully behaviour,” concludes Wessels.
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.”
Jun 6, 2019 | Human Resources, Labour News
Subordination is a fundamental characteristic of the employment relationship and it involves the process of giving instructions to a junior employee with the reasonable expectation for compliance. In Prabashnie Naicker v Africa Flight Services, (delivered 21 May 2019), the Labour Court was called to decide whether an employee’s failure to adhere to an instruction to copy her line manager in her emails warranted a dismissal.
© bloomua – 123RF.com
In 2013, Naicker was employed by Africa Flight Services as a customer service agent. She reported to Mellissa Fritz. Part of Naicker’s duties included calculating payments.
On 3 November 2016, as a result of having provided clients with incorrect pricing, Fritz instructed Naicker to stop issuing incorrect charges and to copy her in all future emails to clients involving pricing.
Following this instruction, Naicker proceeded to forward pricing information and omitted to copy Fritz in her emails. On 7 November 2016, in a separate meeting, Fritz instructed Naicker to copy her in all her emails. The following day, on 8 November 2016, Naicker failed to comply with the instruction. Her failure to comply with the instruction continued between 14 – 16 November 2016.
On 16 November 2016, Naicker was issued with a notice to attend a disciplinary hearing. During the disciplinary hearing, she was charged with insubordination. She pleaded guilty to the charge and she was dismissed. Following her dismissal, she referred an unfair dismissal dispute to the CCMA challenging the fairness of her dismissal. She was not successful at the CCMA. Unhappy with the decision of the commissioner, she launched a review application at the Labour Court.
At the Labour Court, she argued that the commissioner’s decision was not reasonable because her conduct was not “serious and deliberate” because she lacked the necessary intention to defy her line manager. Simply, she had just forgotten to copy her in the emails.
The Labour Court dismissed her review application. In his analysis, Tlhotlhalemaje J noted the following:
- Naicker failed to comply with the instruction on eight occasions between 3 – 15 November 2016;
- Her misconduct was persistent, prolonged and could not be equated to an honest mistake;
- Naicker was instructed to copy Fritz more than once;
- Copying someone on email was not a laborious task. It took less than a minute;
- The instruction was lawful and reasonable because Naicker was prone to providing inaccurate pricing to customers; and
- Naicker often challenged Fritz’s authority, knowledge and experience as her line manager.
The learned judge concluded that Naicker’s conduct of consistently disobeying a simple, lawful and reasonable instruction was overall, wilful and serious. He added that by failing to comply with the instruction, Naicker disrespected her line manager and challenged her authority, and he concluded that she was guilty of gross insubordination.
This case demonstrates that disobeying simple tasks may sometimes lead to gross insubordination. Employees are therefore warned not to disregard instructions they deem unimportant, especially if they are intended to achieve a legitimate business and/or operational objective.
May 15, 2019 | Labour News
On 13 February 2019, the Minister of the Department of Public Services and Administration in South Africa (the Department) released a media statement, causing some unease amongst the general public. The media statement confirmed that the Department has issued an advisory note to all government departments, allowing the inclusion of a social media check when reference checking prospective employees. Short of sliding into your DMs, government departments are now authorised to snoop around your LinkedIn, Facebook, Instagram, Twitter and the like.
It shouldn’t come as much of a shock that private companies have been screening job applicants through social media platforms for quite some time. Government is a little slow on the uptake, but this advisory note shows that they too have jumped on the technological bandwagon.
Although the advisory note issued by the Department is purely what the name suggests, advisory, any employers who make use of social media (and other methods) to screen job applicants, must stay within the confines of the law.
Importantly, prospective employers must respect a job applicant’s privacy. It may be permissible for the employer to browse through open social media profiles, however, catfishing a potential employee by sending a fake friend request to do some snooping would be a poke too far.
Further, where the information gleaned from an applicant’s social media profile, whether public or private, is entered into the employer’s record, the Protection of Personal Information Act 4 of 2013 (PoPI), when fully enacted, will afford additional protection regarding the applicants’ privacy. Although only a limited number of provisions in PoPI have been enacted to date, it is expected that the remaining provisions will be enacted this year. PoPI will provide the following additional protections:
- the applicant must be informed that his or her personal information is being collected;
- the applicant must consent to the processing of his or her personal information; and
- the record of personal information may not be kept for longer than necessary for achieving the purpose for which the information was collected (in this case, the screening of job applicants).
Perhaps the most relevant risk for employers is an unfair discrimination claim lodged by a disgruntled and unsuccessful job applicant. The Employment Equity Act 55 of 1998 (EEA) prohibits unfair discrimination against both employees and applicants for employment on the grounds of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or any other arbitrary ground.
In light of this, employers should exercise great caution when relying on information gleaned from social media profiles. For example, declining to make an offer of employment because of a social media profile that depicts a particular religious belief, sexual preference, political affiliation or any other prohibited ground would amount to unfair discrimination. The unsuccessful job applicant would be entitled to lodge a dispute with the Employment Tribunal within six months from the date of the discriminatory conduct. Upon finding that an applicant has been unfairly discriminated against, the Employment Tribunal could impose a just and equitable remedy. Such a remedy could include the payment of compensation and/ or damages by the employer to the employee.
Whilst employers should tread lightly when screening job applicants, an employer is empowered to make hiring decisions, based on results from social media screening, that are linked to the inherent requirements of the job. For example, where a job requires an employee to be politically neutral, and during a social media check of the applicant it becomes clear that the applicant has strong political affiliations, it would not necessarily constitute unfair discrimination not to offer the applicant the job.
In practice, it may be difficult for an unsuccessful applicant to prove that they did not get the job due to unfair discrimination. However, the risk for employers is tangible and the repercussions of an unfavorable award can extend past a monetary blow and end up in an unpleasant media storm.
Provided that employers snoop responsibly, social media checks may provide some useful intel on prospective job applicants and so we understand why employers are clicking the ‘like’ button.
Apr 16, 2019 | General, Labour News
Since the Constitutional Court declared the private use of cannabis legal in the matter of Minister of Justice and Constitutional Development and Others v Prince & Others [2018], employers have been required to consider how best to deal with the effects of personal cannabis use in the workplace.
© fahrner – 123RF.com
The use of cannabis by employees at home does not necessarily mean employees are entitled to attend the workplace under the influence or to render services with their ability impaired.
The implications of the personal use of cannabis and its impact on the workplace was recently considered by the Commission for Conciliation, Mediation and Arbitration in the case of Mthembu & Others v NCT Durban Wood Chips [2019].
In this case the employer, a company in the wood and chip industry, dismissed several employees for being under the influence of an intoxicating substance after testing positive for cannabis during working hours.
In terms of the employer’s substance abuse policy, the employer had a zero-tolerance approach to the use of intoxicating substances by employees due to the dangerous nature of the industry in which it operated. The employees challenged the fairness of their dismissals on the basis that they had consumed the cannabis at home in their private time and not during working hours.
While noting that the Constitutional Court had recently declared the private use of cannabis legal, the Commissioner held that, akin to alcohol, an employer is entitled to discipline employees who use cannabis or are under its influence during working hours, where there is an inclination that the consumption of cannabis could impair the employee’s ability to work to the standard and care reasonably required by an employer.
The rationale behind the employer’s zero-tolerance approach to substance abuse was consistent with the high degree of danger posed at the workplace in which heavy machinery and dangerous equipment was continually being operated. In the circumstances, the Commissioner held that it would be reasonable for the employer to expect its employees not to be under the influence of cannabis when reporting for duty because of the inherently dangerous working environment. The employees’ dismissals were thus found to be fair.
Not a one-size-fits-all ruling
While the CCMA’s ruling may provide guidance to employers, the decision to dismiss the employees in the present matter was closely aligned to safety considerations associated with individuals working in a dangerous environment, under the influence of intoxicating substances. What about employees who perform desk jobs under the influence of cannabis? Would a zero-tolerance approach to these employees be reasonable in such circumstances? Would these employees pose a threat to the safety of other employees in the workplace?
The debate on how best to deal with the impact of personal cannabis use in the workplace is thus likely to continue.
For the time being, employers should be mindful of the following issues:
- One of the difficulties that employers will face when employees use cannabis in their private time is that they will need to show that the employee’s ability to work was impaired or that the employee was under the influence of cannabis while at work. As with alcohol abuse, an employer may discipline an employee who is under the influence of cannabis in circumstances where the employee is unable to perform her or his duties or poses a risk to other employees in the workplace. However, it is possible that an employee may test positive for cannabis even when not under the influence while at the workplace. So, for example, an employee who gets ‘high’ over the weekend may test positive for cannabis on Monday but this does not necessarily mean she or he is under the influence and unable to carry out her or his duties. Accordingly, a more nuanced approach may be required to deal with the use of cannabis than that of alcohol.
- A further challenge for employers may be the methods of detecting cannabis. There are a number of ways to test for cannabis, including urine and blood analysis. Unlike alcohol which leaves an individual’s bloodstream within a few hours after consumption, cannabis may remain present in an individual’s system for a number of days. This may mean that a zero-tolerance approach may be unconstitutional as it will result in an employee not being able to use cannabis at home in her or his private time. In addition, tests for cannabis do not demonstrate the degree of impairment of the employee’s ability to perform his or her duties.
- In developing any policy or workplace rules addressing the use of cannabis, employers will be required to take into account a wide range of factors. These include the nature of the employer’s business and operations; the employee’s duties and responsibilities; the manner of testing for cannabis in compliance with Section 7 of the Employment Equity Act, 1998; and appropriate action depending on the extent of the impairment to the employee’s ability. Employers will thus be required to take steps to monitor an employee’s behaviour to ascertain whether she or he is showing signs of being under the influence of cannabis on duty.
While the CCMA’s ruling gives guidance, it should not be used as a blanket justification for dismissing employees who test positive for cannabis. Employers should carefully consider how to regulate the use of cannabis in the workplace to best suit the nature of its business and operations and associated risks while respecting an employee’s constitutional right to use cannabis at home.
Feb 19, 2019 | Labour News
The Department of Labour has appointed a National Minimum Wage Commission, with its first meeting set to take place in February.With a staff complement of 30 workers, the commission will be led by labour law academic Professor Adriaan van der Walt from the Nelson Mandela Metropolitan University in Port Elizabeth, the Department announced on Tuesday.
The commission will also be composed of three representatives from organised labour; three representatives from business; three from the community constituency and three independent experts.
The National Minimum Wage (NMW) Act came into effect on 1 January 2019 and stipulates that R20 is the minimum rate workers should earn per hour.
The NMW Act provides for the establishment of the commission that will be responsible for the annual review and the adjustment of the National Minimum Wage Act and to investigate the impact the act has on the economy.
More critically, the commission will encompass responsibilities of the Employment Conditions Commission (ECC) that advises the Minister on sectoral determinations and other issues arising out of the application of the Basic Conditions of Employment Act.
The act has, however, burdened CCMA resources which reported receiving over 400 referrals of the NMW as of the end of January.
This is a 3.2% rise to CCMA’s caseload.
The department’s Deputy Director General of Labour policy Virgil Seafield said they are on hand to help the CCMA in this regard.
Seafield said the department has also so far received 75 applications for exemptions. The applications have been processed and two of those have been referred for auditing.
According to Seafield, it was still early days to determine the future trends on non-compliance with NMW.
The CCMA has received an additional R107-million from the National Treasury to assist in the implementation of the NMW.
