Racism in the Workplace and Hate Speech

There has been a lot to talk about on this topic following on from the Constitutional Court Ruling on 17th May 2018 in the matter between Rustenburg Platinum Mine vs South African Workers Association obo Meyer Bester.

In summary, the facts and history of the case leading up to the Constitutional Court are as follows.

The case relates to an incident in 2013 wherein Mr Bester pointed his finger at a fellow worker and told him “verwyder daar die swart man se voertuig”. Mr Bester was charged with insubordination and making racial remarks and was dismissed following a disciplinary enquiry. During the enquiry he denied ever saying the words “swart man” and was unrepentant and confrontational with the employer’s witness.

The matter was referred to the CCMA and the Commissioner found that “swart man” was a descriptor and not racist. The dismissal was found to be both substantially and procedurally unfair.

The matter was then taken to Labour Court on review. The Labour Court found that referencing a person as “swart man” was in fact racist and derogatory and that Mr Bester was fairly dismissed.

Mr Bester then lodged an appeal in the Labour Appeal Court. The Court found that taking into account the context in which the phrase was used, the inference was that the phrase was not necessarily racist and derogatory and the dismissal was therefore found to be unfair both substantively and procedurally.

Finally the matter went to Constitutional Court which found the following:

  • The Labour Appeal Court’s point that the phrase was neutral did not take into account or recognise the legacy of apartheid and racial segregation which has resulted in us living in a country that is racially charged.
  • CCMA and The Labour Appeal Court also failed to take into account the circumstances around the use of the phrase “swart man”.
  • Mr Bester also did not show any remorse for his actions and had made no attempt to apologise.

The Constitutional Court found that the dismissal was the appropriate sanction.

This decision is an important one because it deals with the more subtle and less obvious forms of racism and assists in creating a test for determining whether a neutral statement is in fact neutral or racist.

As employers, it is imperative that we understand our obligations in this regard and have adequate policies, rules and procedures in place to ensure that employees understand what is and is not acceptable as well as what the consequences are if they transgress. This is especially true taking into account the Bill for “The Prevention and Combating of Hate Crimes and Hate Speech Bill”.

The Bill aims to provide protection for person or persons against any form of communication which is threatening, abusive or insulting.

Once adopted, this Bill will criminalise hate speech and hate crimes which often take place in the workplace. This Bill will now make employees susceptible to disciplinary and civil action as well as criminal prosecution.

We are entering a time where people will be held accountable for their actions and as employers we need to be moving forward too.

If you require assistance with policies and procedures relating to racism in the workplace, please feel free to contact info@hrtorque.co.za for assistance.

Encouraging Employee Performance

In addition to Job Profiles and Key Performance areas, employees need to know when they’re performing well and when they’re not.

Effective managers assist in clarifying expectations and provide clear, timeous communication relating to the employee’s work structure and priority of tasks.

They hold employees responsible and accountable for their input and output, and make themselves available to assist the employee with their questions. They also ensure ongoing support and regular feedback.

After setting expectations, effective managers do not walk away hoping that the task will ‘just be done’. Regular measurement and feedback is essential. This ’employee engagement’ plays a crucial role in supporting company growth.

What is responsibility and accountability?

The responsible person is the individual who actually completes the task and is the person responsible for action / implementation. Responsibility can be shared. The degree of responsibility is determined by the individual with the “accountability”.

The accountable person is the individual who is ultimately answerable for the activity or decision.

The main difference between responsibility and accountability is that responsibility can be shared while accountability cannot. Being accountable not only means being responsible for something but also ultimately being answerable for your actions. Also, accountability is something you hold a person to only after a task is done or not done. Responsibility can be before and/or after a task.

Conflict Potential

When clients subscribe to our HR Admin product, our administrators come to a client’s premises for a set number of days per week/month. This gives us unique insights into the practical day-to-day employee issues clients face.

Conflict in the workplace is common place and can arise for a number of reasons. One of the key reasons we see conflict arising stems from uncertainty faced by employees:

  • There are no Job Profiles in place with clear expectations and measurements.
  • Managers do not have the skills to assist employees set and achieve goals.

Tip: Involve employees to assist you in formalising their Key Performance areas.

If you have been considering why you are experiencing conflict and non-performance on a daily basis, turn your thoughts to the possibility that employees may not know exactly what’s expected of them.

Managers assess and implement individual work standards and timing according to what they believe is possible and reasonable. Naturally, these would differ between the Managers and conversations with employees inevitably end up in conflict, refusals to obey instructions, and decreased employee morale.

If a company makes an objective assessment of reasonable inputs and outputs based on work-study results or previous experience, and obtains the input and sign off from employees, they are more likely to enjoy stress free management, increased employee initiative, and reliance on employees meeting their KPAs responsibly and independently.

Compensation Fund Annual Return fo Earnings – Deadline 31 May 2018

The W.As. 8 can be filed online (CF-Filing) on the Compensation Fund website, up until the revised deadline of the 31 May 2018.

The fund will immediately calculate the assessment amount and issue an invoice to the employer online. This can be paid and as soon as payment is received the Fund will issue the employer with a Letter of Good Standing (LOGS).

The Compensation Fund is running a number of workshops towards the end of May to help employers with the CF-Filing system.

Editor’s Note: Apparently employers new to the Compensation Fund can now register online (but we have not tested this yet).

Youth Employment Scheme

Youth employment is a critical issue for South Africa. The Employment Tax Incentive was launched in January 2014 to reduce the cost to employers of hiring young people in order to help with this issue.

This ETI incentive is due to come to an end on the 28 February 2019 but will be reviewed by National Treasury during 2018. If the benefits exceed the tax revenue foregone, the sunset clause in the ETI will again be extended.

In addition, the Harambee Youth Employment Accelerator public-private partnerships prepare young people for work through training and matching programmes.

To provide additional pathways for young people into the world of work, the state President recently formally launched the Youth Employment Service, known as YES. The YES initiative was initiated as a collaborated between government, business, labour and civil society. Companies such as Unilever, Sasol, Investec, ABSA and Netcare have come forward to provide work experience opportunities to the first 100 YES participants. The YES initiative aims to see more than one million young South Africans being offered paid work experience over the next three years.

How does YES work?

The programme has three channels through which employment opportunities can occur:

  1. Corporate work experiences – Business that participate in the programme create one year paid positions for youths aged between 18 and 35, in addition to their current headcount.
  2. SMME host placements – Businesses that do not have the capacity to place more people in their organisations, have the option of sponsoring the salary for a one-year placement in small and medium enterprise (in year one for 7 to 10 months); and
  3. SMME development – Young people are empowered to start and grow their own businesses, with support from YES in the form of training, seed funding and value – chain integration.

There have been meetings early in 2017 to involve computerised payroll systems in the initiative and this resulted in the establishment of a working committee, this committee has met several times with the YES initiative team during the latter part of 2017 with a view to relating the data required by the YES team to the data available in payroll Systems.

Current Position

The following documents have recently been issued for public comment:

  1. Draft Requirements for B-BBEE verification for the YES initiative.
  2. Draft Terms and Conditions: Youth Employment B-BBEE Recognition.
  3. Draft Amendment Bill to the Broad-Based Black Economic Empowerment Amendment Act that, amongst other key amendments, introduces the youth Employment Service initiative B-BBEE Recognition.

Employer Requirements to Check Employees before they Work with Children or Mentally Disabled Patients

Author: Guardian (www.theguardian.co.za)

Employer Requirements to Check Employees before they Work with Children or Mentally Disabled Patients

If you are an employer who employs employees, and those employees work in an environment where they may come into contact with children or mentally disabled persons, it is imperative that you ensure all your staff and service providers, whether they are remunerated or work as volunteers are checked against both the Sexual Offenders Register and the Child Protection Register.

What does the Legislation say?
Sexual Offenders Register – Chapter 6 of The Sexual Offences Amendment Act of 2007dictates that anyone employing staff who will in any way come into contact with children at any time whilst on duty or who manages them must have them and their staff cleared against the Sexual Offences Register. The staff who have to be cleared would be anyone who is either paid or not paid (volunteers). This ensures that no staff member who has been convicted of a sexual crime against children can access children through employment.

Child Protection Register – Chapter 7 of the Children’s Act of 2005 dictates that any person managing or operating, or who works with or has access to children either as an employee, volunteer or in any other capacity at an institution providing welfare services to children, including a child and youth care centre, a partial care facility, a shelter or drop-in centre, school, club or association providing services to children must be cleared against the Child Protection Register.

What are your obligations as an Employer (as contained in the Sexual Offences Amendment Act)?
(Section 45(1) of the Act) states that any employer who intends on employing a person or has employed any employee must, in the prescribed manner apply to the Registrar for a prescribed certificate, stating whether or not the particulars of the employee are recorded in the Register

What if an employee is on the register?
Any employer who determines that an employee is on the register at the time of the check or any time thereafter is required to terminate the employee’s employment or, where possible, move them to a position in which they will have absolutely no access or contact with a child.

What if you don’t check?
(Section 45(3)) – An employer, who fails to comply with any provision of this section, is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding seven years or to both a fine and such imprisonment.

Once you, as the employer have received the results, the Act goes on to say that the information needs to remain confidential. Any person who wilfully discloses or publishes any information to any other person which he or she has acquired as a result of an application contemplated in section 44 or in any other manner, is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding three years or to both a fine and such imprisonment.

What are your obligations as an Employer (Children’s Act)?
Before a person is allowed to work with or have access to children the person managing them must establish whether or not that person’s name appears in Part B of the Child Protection Register.

No person who is on the register may:

  • Manage or operate, or participate or assist in managing or operating, an institution providing services to children.
  • Work with or have access to children at an institution providing services to children, either as an employee, volunteer or in any other capacity.

What if you don’t check?
Section 124 (2) states that If an employer is found guilty of failing to establish if an employee’s name is on Part B of the register the employer is liable, on conviction to a fine or to imprisonment for a period not exceeding 10 years or both. If convicted of a second offence the person can be liable to a fine or imprisonment for a period not exceeding 20 years or both.

Labour Brokers and the “Assign Services Case”

The Assign Services case on the “deeming” provision in the Labour Relations Act is apparently due to be heard in February by the Constitutional Court with a judgement expected in April 2018. This ruling has a material impact on all employers who use employees through a labour broker.

As a reminder, the original ruling in the Labour Appeal Court (now being appealed in the Constitutional Court) held that employees deemed to be employees of the employer under the Labour Relations Act were solely the employers of the end client and not employers of the Labour Broker (or other party) with whom they were contracted. This ruling created an odd situation where employees held a contract with one party and were managed by that party, but were actually employers only of another party with whom they had no contract of employment.

When and how can one recover a debt from an employee?

It often happens that employees borrow and owe money to employers. While the recovery can often be done amicably there are occasions when it becomes more difficult.

Section 34(1) of the Basic Conditions of Employment Act allows an employer to deduct an amount from an employee’s remuneration only if the employee has consented thereto in writing or the deduction is permitted in terms of a law, collective agreement, court order or arbitration award.

Section 34(2) of the BCEA allows for deductions from remuneration where the employer has suffered losses or damage on account of the employee and a specific process is provided for prior to the deduction of monies:

  • The loss/damage occurred due to the employee’s fault during the course of his/her employment;
  • A fair procedure has been followed, including giving the employee an opportunity to give reasons why the loss/damage should not be deducted;
  • The deduction does not exceed the cost of the loss/damage;
  • The deductions do not exceed a quarter of an employee’s monthly salary.

As employees are required to consent in writing to the deduction of monies from their remuneration it is advisable to obtain such consent from all employees prior to any damages or losses being suffered. This may be done through the incorporation of a clause to such effect in their contracts of employment. Thereafter should the position arise where monies need to be recovered they should only be recovered after a fair process has been followed. Deductions must be made within the prescribed limit of a quarter of an employee’s monthly remuneration.

Essential Services Ruling

Essential Services Ruling – Social Work, ResCare, Protective Workshops and Day Care

All Social Work Services and services to ResCare, Protective Workshops and Day Care have been legislated as essential services. This means individuals employed in these industries are not permitted to strike!

Section 23(2) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) states that… “Every worker has the right… (c) to strike.”

Section 65 (1) (d) (i) of the LRA states that… “No person may take part in a strike… if that person is engaged… in an essential service”.

An ‘essential service’ is defined in section 213 of the Act as:
I. a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population; the Parliamentary service; the South African Police Service.

Having considered the written and oral submissions of the parties, as well as the applicable law referred to above, the Panel were of the view that the following services should be designated as essential:

  • Mental health care
  • Diagnostic assessments of new referrals in respect of people with intellectual and psychiatric disabilities
  • Psychological assessments
  • Therapeutic counselling services or any other counselling services
  • Mental health crisis management
  • Court preparation and assistance for victims who fall within the category of “users”
  • Rehabilitation services
  • Treatment (including assistance with adherence to medication)
  • Training (only to the extent that it is offered to the mental health users)