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When an employee raises a possible defence during a disciplinary hearing, such as ill-health, how does this affect the onus of proof and the ultimate findings? The Labour Court considered this recently and confirmed the established rules of evidence in this regard.

Introduction

It is trite that the employer bears the onus to prove allegations of misconduct against an employee on a balance of probabilities during disciplinary proceedings. Different from the standard applied in criminal cases, namely proof beyond a reasonable doubt, this does not mean that if any reasonable doubt or possibility of another explanation exists as to the employee’s guilt/blameworthiness, s/he cannot be found guilty.

This is sometimes difficult for employees or their representatives to understand, as is often demonstrated by defences aimed at merely ‘poking holes’ in the employer's version to create doubt or the possibility of another explanation. This is a particular complication if the...

Ill health issues in the workplace are not new, but in recent times, issues around the changing working environment, mental health and the repercussions of ‘long Covid’ have put this in the spotlight. Employers and employees alike need to know what is ‘fair’ and what their respective rights and obligations are.

Employers are obliged by law to maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees. On the other hand, there are commercial interests and operational demands that must be met. This is a fine balancing act, especially when an employee’s performance or deliverables are below standard due to something that is not their ‘fault’ or within their control, such as a health issue. 

Some health conditions are also difficult to diagnose – specifically those around mental health – or to give a prognosis on. Health information is sensitive personal...

The Information Officer of an organisation has a dual duty as it relates to the access to information held and processed by the entity. Whilst the Protection of Personal Information Act (POPIA) has been at the forefront of people’s minds in recent months, it is important not to forget the duties of the Information Officer in respect of PAIA. There are a number of offences and penalties for non-compliance listed in the Act.

Whilst POPIA deals with the protection of personal information specifically, PAIA is much broader in that it deals with access to any information held by an organisation. There are prescribed procedures and conditions for a person to apply for access to information under PAIA, and there are also prescribed grounds on which such requests may be granted or refused. Information officers will have to be aware of these provisions and deal with such requests in conjunction with their duties under POPIA.

It is also important to take note of the fact that...

You may have become aware of the Protection of Personal Information Act (POPIA) in the last weeks or days before the 1 July 2021 compliance deadline, or perhaps only on 1 July when your inbox and social media groups were suddenly flooded with POPIA-related messages, disclaimers, and so on.

You may have rushed to get some kind of a privacy policy, you may also have jumped onto the bandwagon and forwarded your own version of these messages to your customers. You may have fallen for offers from companies who promised you 'full compliance' by buying their generic POPIA-pack; or believed those who offered assessments and certification for POPIA compliance (which does not exist).

Well, it is not quite as easy as that. Ignorance of the law is no excuse in South Africa and you would be wise to ask yourself if you are really compliant and really safe from Regulatory fines and court actions, if you have so far only done the bare minimum.

If you were in a rush to just get 'something' in...

South Africa 'woke up' to POPIA (the Protection of Personal Information Act) in a big way on 1 July 2021 - mostly because of the many, many emails and social media messages that did the rounds that day, claiming that this new law requires consent for direct marketing or to be part of a WhatsApp / Facebook group, and that a failure to unsubscribe will imply that such consent has been given going forward.

Well, not quite. POPIA is quite specific and strict when it comes to the issue of consent (in general) and consent for direct marketing (specifically). Whilst the Act does not apply retrospectively, the continuous processing of personal information obtained historically, is subject to the Act and its enforcement provisions as from 1 July 2021.

However, POPIA does not apply to all activities and communications involving personal information. 

• There are some exclusions, such as using personal information in the context of purely personal /household...

The Labour Court, in a recent case, has confirmed that dismissing an employee who came to work knowing that he had been exposed to the virus, was fair in the circumstances of this case. 

The facts in Eskort Limited v Stuurman Mogotsi and Others (JR1644/20) [2021] ZALCJHB 53, were that the employee (Mogotsi) was an assistant manager and a member of the in-house “Coronavirus Site Committee” at work - which, amongst other things, was tasked with informing employees about the risks of COVID-19, what symptoms to look out for and what to do in the event of exposure.

Mogotsi usually travelled to and from work with a colleague. The colleague started feeling unwell, was booked off from work and subsequently tested positive for COVID-19. Mogotsi also started experiencing symptoms associated with COVID-19. Despite him being booked off and his employer advising him to stay at home, he however persisted in coming to work. During the period when he was awaiting the...

Although data breaches are nothing new, this topic has received more focus recently with stricter data protection laws and regulations. It is more important than ever that organisations prepare for such an occurrence and have formal procedures and protocols in place to deal with the fallout. Here are some pointers and reminders of aspects to think about.

What is a data breach or security compromise?

In terms of the Protection of Personal Information Act (POPIA), this is not defined. Under the new Cyber Crimes Bill, there are descriptions of types of actions that would constitute criminal offences. However, for the purposes of being prepared, this could entail any type of data breach or security compromise (digital or physical) that would expose the organisation to potential risk.

Apart from the obvious things around cyber security such as hacking, malware, ransomware attacks, etc. we also need to consider other vulnerabilities in the protection of the (personal)...

The Labour appeal Court confirmed a number of important principles around misconduct and workplace discipline in the case of Pick ’n Pay Retailers (Pty) Ltd v JAMAFO obo Maluleke and others (2020) 29 LAC.  

The employee was a trainer of cashiers. She and a colleague were gifted boxes of chocolates by a customer of the store, which she did not declare and then attempted to exchange for cash. In doing so, she breached a number of company protocols and policies (which she had been well aware of as the trainer) and when she could not succeed, tried to reverse the transactions to try and cover up her activities - involving names and passwords of other employees. She was dismissed by the company on the basis of breaching company policies and attempted fraud, despite her service of 24 years and clean disciplinary record.

The employee did not deny what she had done, but tried to justify her actions by saying that she had not wanted to siphon money from the store, but just...

An employee is pushing the boundaries. You get complaints about performance and client service. You call him/her in, express your discontent and tell them to do better. This happens a few times, but you just do not get around to formalising these little chats (who has the time, and who needs the conflict?). Then something happens that gets the attention of senior management / the Board / social media..........and all eyes are on you to address this issue once and for all. What do you do?

Famously, in our experience, a disciplinary hearing is called. This latest incident is taken and dissected to see how many of the boxes in the company's disciplinary code can be ticked in order to formulate as many charges as possible from this one incident - because this was now the last straw and the pressure is on to dismiss the employee.

So, the bulked-up disciplinary charges for the hearing include added charges like dereliction of duties; bringing the company's name into disrepute; and...