Tag: law

You could be jailed for lying on your CV

By Tom Head for The South African

The National Qualifications Amendment Bill is not here to play, ladies and gentlemen. The adjustment to the existing legislation comes with some pretty stern updates, which aims to clamp-down on dishonesty from applicants who embellish the truth on a CV.

The South African Qualifications Association (SAQA) will be charged with monitoring the registered qualifications of each citizen in South Africa. That’s quite the task for such a modest regulatory body, but the ANC has voted the move through in Parliament.

What is the National Qualifications Amendment Bill?

Cyril Ramaphosa now has the final say on what happens next – it’ll be his decision on whether the government should plough ahead with the proposals should they remain in power after Wednesday 8 May.

The bill isn’t likely to impact working-to-middle class workers too much, but it will serve as a deterrent to citizens applying for high-profile jobs. Executives, CEOs and even our politicians will be subject to rigorous background checks. If they are found to be lying about their educational history, stiff penalties await:

“Any person convicted of an offence in terms of this act is liable to a fine or to imprisonment for a term of no longer than five years, or to both a fine and such imprisonment.”

“Any person, educational institution, board member or director may be ordered to close its business and be declared unfit to register a new business for a period not exceeding 10 years.”

Lying on your CV could soon be a serious legal issue

The punishment is not retroactive – so if your name is Jacob Zuma or Hlaudi Motsoeneng, you can breathe a sigh of relief. But if Ramaphosa decides to give this the green light, you may well have told your last porkie on a resume.

As IOL report, 97 national qualifications and 95 foreign qualifications were misrepresented between last October and November. That increased the total number of fraudulent applications up to 1 564 over the past 10 years.

The bill also aims to publish a “name and shame” list for those who try and push their luck just a little too far. So, if your CV is looking a little bare at the moment, try and think outside of the box – and not outside of reality.

 

By Marelise van der Merwe for Fin24

A coalition of artists, writers and publishers has written to Trade and Industry Minister Rob Davies to challenge the Copyright Amendment Bill, due to be adopted by the National Council of Provinces on Wednesday.

The coalition comprises writers, book and music publishers, film directors, producers, musicians, performing artists, film and television workers, content creators and business people.

These include representatives from heavyweights like Kagiso Media, NB Publishers, Sony, Warner, Universal, Juta, the Recording Industry of SA, the Independent Black Filmmakers Collective, Media24 Books, DALDRO, the Music Publishers’ Association of SA, the Visual Arts Network of SA, the David Gresham Entertainment Group, the Academic and Non-Fiction Authors’ Association of SA, Sony/ATV, Shuter & Shooter, the Publishers’ Association of SA (PASA), and Pearson SA.

The Copyright Amendment Bill seeks to update South Africa’s four-decade-old copyright law. The Department of Trade and Industry argues it will protect authors, composers, artists and other professionals in the publishing sector, and that it will improve access to educational materials. It has also previously argued the Bill will address a lack of formalisation in the creative industry.

‘Devastating’

However, the coalition’s letter, published in the Sunday Times on March 17, says the Bill has deviated from its “commendable” goals and now carries “unintended negative consequences”. The letter lists six key concerns about the Bill, calling it potentially “devastating” to the creative industry.

“You have stated in correspondence to some of our member organisations that ‘the cost of procuring educational material in South Africa is very high, therefore flexibilities will be incorporated with teaching exceptions,'” the letter states.

“Our concern is that these ‘flexibilities’ or exceptions from copyright protection will have a devastating impact on the publishing industries.”

Job losses, revenue nosedive

The Bill will lead to job losses, the writers argue, as academic publishing becomes less financially viable, forcing publishers to close. The letter cites an impact assessment by PwC and PASA which found that 1 250 jobs – nearly a third in the industry – would likely be lost due to implementation of the Bill.

The same report, though this is not mentioned in the letter, found that the Bill could see a 33% decrease in sales, equivalent to R2.1bn, plus a decrease in exports of local titles.

The letter argues there will be an additional impact on the film industry, which – according to an National Film and Video Foundation report – in 2017 raised its level of production by over R12bn.

Another concern, according to the letter, is the impact on satellite industries, as the Bill will mean limited revenues for costly projects. “This will have a knock-on effect, damaging the numerous service industries that support productions, especially in the Western Cape.”

The Bill also creates “uncertainty around ownership and royalties” by permitting free re-use and therefore threatening production investment, the letter adds.

According to the missive, the Bill is “vague and imprecise”, and will need to be tested in courts over several years “requiring content creators to fight to defend rights that should be theirs automatically”, which will be costly and time-consuming.

Even where jobs aren’t lost, the Bill will cause loss of income to working creatives, the coalition says. “This will remove the incentive to write, produce and publish works, since the Bill allows [work] to be copied and republished with impunity, often free of charge.”

Big tech companies will cash in

Related to this is concern over the benefit to international tech corporations, who – according to the coalition – will be able to access and republish creative and research work without having to pay fair royalties or usage fees, and then monetise this content by licensing it or selling advertising around it, without the original creators seeing a cent.

Lastly, the writers say, South Africa’s body of knowledge will be reduced rather than increased. “When the publication of academic writing and research no longer pays, South African writers will stop writing, and publishers will stop publishing. This will mean less South African publishing will be available,” they argue.

“Imported foreign material will fill the gap, leaving our students to learn generic ideas from the global north, not strictly applicable to the African and South African situation.”

Dismissals require relevant evidence

By Ivan Israelstam, chief executive of Labour Law Management Consulting 

Even if an employee has committed murder, dismissal will not be upheld by the CCMA or a bargaining council where there was insufficient evidence brought to prove guilt.

Providing convincing proof of guilt is a factual and skilful exercise requiring:

  • Testimony that is not contradictory;
  • Evidence that, after having been challenged by the accused employee, still holds water;
  • Documents that are validated and that clearly show up the employee’s misconduct;
  • Evidence that is corroborated by other evidence;
  • Testimony from credible witnesses;
  • Evidence derived from thorough and honest investigation; and
  • Evidence that makes the truth look like the truth.

Thus, proving one’s case depends on the bringing of evidence that will persuade the presiding officer that one’s allegations or claims are true and genuine.

However, it is not enough to bring strongly supported or incontrovertible evidence. Parties need to further ensure that the evidence they bring is relevant to the case.

For example, if an employer wishes to convince an arbitrator that an employee stole petty cash it is pointless for the employer to bring solid proof that the employee’s work performance is poor because this is irrelevant.

At the same time it is most infuriating for parties who have gone to the trouble of collecting genuine, solid and relevant evidence only to see the arbitrator ignore this evidence.

Fortunately the parties do have recourse to the Labour Court if a CCMA arbitrator disallows or ignores relevant and legally permissible evidence in making his/her award.

It is not always easy for the presiding officer to decide if evidence is relevant or not because:

• the presiding officer may nor be properly trained to be able to understand what is and is not relevant.

• of lack of clarity of the evidence itself.
• the evidence may only be indirectly relevant to the case. For example, the employee may have been dismissed for poor performance of his/her work. However, the employee might tell the arbitrator that the employer has been victimising him/her for weeks on end. While this seems, on the surface, to be irrelevant, the employee may be able to show that it was the victimisation that caused the poor performance or that the poor performance allegations are false and are part of the victimisation campaign.

It is therefore crucial that parties ensure that they bring their evidence in such a comprehensive, clear and persuasive manner that it cannot be ignored by a fair arbitrator or disciplinary hearing chairperson.

The President signed the National Minimum Wage Act into law on 23 November 2018.

In terms of this Act, all employers, irrespective of which industry they are operating in, must pay at least the minimum wages as set out below:

R 15.00 per hour for domestic workers;
R 18.00 per hour for farm workers; and
R 20.00 per hour in respect of all other employees.

The effective implementation date for these wages have not yet been promulgated but all indications are that it will become effective on 1 January 2019.

Exemptions
Although the Act makes provision for employers to apply for exemption from the minimum wage, it is clear from the draft exemption regulations that the Department of Labour is simply paying lip service to this principle.

The maximum exemption an employer will be able to qualify for will be a 10% reduction on the prescribed minimum wage, which will only be granted for a year, and which will be adjudged on the employers’ profitability, solvency and liquidity. This outcome hardly seems worth the effort taking into account the inevitable red tape that will accompany the application.

South Africa adopts Cybercrime Bill

Source: South Coast Sun

Parliament’s Justice Committee officially adopted the Cybercrimes and Cybersecurity Bill last week. The Bill is aimed at bringing South Africa in line with other countries’ cyber laws and the threat of cybercrime, and it has introduced new laws regarding ‘malicious’ electronic communication.

BusinessTech outlined these proposed new crimes below:

* Any person who contravenes one of the following provisions is liable on conviction to a fine or to imprisonment for a period not exceeding three years, or to both a fine and imprisonment.

* A message which incites damage to property or violence.

* Any person who unlawfully makes available, broadcasts or distributes by means of a computer system, a data message to a person, group of persons or the general public with the intention to incite:
(a) the causing of any damage to property belonging to; or
(b) violence against, a person or a group of persons.

* A message which threatens persons with damage to property or violence. As an extension of the above, the Bill also makes it an offence to distribute messages which threatens a group of people with violence, or with damage to their property.

The Bill clarifies that ‘group of persons’ means characteristics that identify an individual as a member of a group. These characteristics include without limitation: Race; gender; sex; pregnancy; marital status; ethnic or social origin; colour; sexual orientation; age; disability; religion; conscience; belief; culture; language; birth and nationality.

* A message which unlawfully contains an intimate image.

By Ivan Israelstam, chief executive of Labour Law Management Consulting

Employers are entitled to use confessions as evidence in disciplinary hearings.

However, just because an employee makes a confession this does not allow the employer to fire the employee on the spot.

This is because:

• Even where the employee does confess s/he is still entitled to a proper hearing

• The confession may have been coerced

• The employee may not have understood what he was doing when he/she signed the confession

• The act to which the employee confessed may not amount to misconduct serious enough infringement to merit dismissal.

• The CCMA might find, for technical reasons, that the confession was invalid.

We need to look at each of these factors more closely:

Even where the employee does confess he/she is still entitled to proper procedure

The Labour Relations Act (LRA) gives employees the unassailable right to a hearing and not even a confession of murder will allow the employer to deviate from this principle.

Even where the employee properly confesses to an act of misconduct it may not be a serious enough infringement to merit dismissal

Dismissal would be unfair where the employee admits to having arrived half an hour late for work especially if this is a first or second offence because dismissal must be reserved for repeated offences or for gross misconduct.

The CCMA might find, for technical reasons, that the confession was invalid

For example, in the case of FAWU obo Sotyato vs JH Group Retail Trust (2001, 8, BALR 864) the employee signed a confession that he had stolen two bottles of beer. However, the CCMA ruled out this confession on the grounds that it had not been sworn before a commissioner of oaths.

The confession may not have been made willingly

If the confession was made under duress it will not qualify as a confession at all. At best it will constitute a meaningless statement coerced out of the employee; and at worst it will act as proof that the employer was seeking a scapegoat or was trying to concoct a false case against the employee as a means of getting rid of him/her for unacceptable reasons.

The employee may not have understood what he was doing when s/he signed the confession

The employee may be asked to sign a confession document but may, for example, think he/she is signing acknowledgement of receipt of a notice of a disciplinary hearing. Should this be proven the confession will become invalid.

Confessions that are properly made and wisely used can be valuable at disciplinary hearings. The challenge for the employer is therefore to obtain the expertise necessary to ensure that once a confession is made that it sticks and is appropriately used.

The meaning of ‘unfair’

By Ivan Israelstam, chief executive of Labour Law Management Consulting 

The Labour Relations Act (LRA), born from the Constitution, provides that “every employee has the right not to be-
(a) unfairly dismissed; and
(b) subjected to unfair labour practice.”

Section 187 of the LRA provides that a dismissal is automatically unfair if it has an unfair reason. The section then lists the reasons for dismissal that would be unfair. For example, if the employee was fired because he/she had exercised his right to take action against the employer in terms of the LRA, this retaliatory dismissal would be automatically unfair. Again, we have an example of the employer’s interference with an employee’s right being defined as “unfair”.

‘Unfair’ is one of the most frequently used terms in labour law. The CCMA receives tens of thousands of referrals each year from employees claiming unfair treatment at the hands of their employers. It is therefore most surprising that this term is not defined in any of the statutes. The result of this is that the decision as to what is “unfair” has to be made by trade unions, employees, employers, judges, arbitrators, and legal practitioners in each individual case where unfairness is being alleged.

While the legal meaning of the term ‘unfair’ is extremely illusive every employer needs to have a proper grasp of the legal meaning of “unfair” in order to avoid the legal repercussions of doing anything unfair to its employees.

Section 188 of the LRA deems a dismissal to be unfair, even if it is not automatically unfair, if the employer fails to prove-
(a) that the reason for the dismissal is a fair reason; and
(b) that the dismissal was effected in accordance with a fair procedure.

This section explains neither what is meant by “a fair reason” nor what a “fair procedure” is. However, common law has established guidelines in these regards and these guidelines have been codified in Schedule 8 of the LRA. For example, item 7(b) includes a requirement that any person deciding whether a misconduct dismissal was fair must, amongst other things determine whether the dismissal was an appropriate sanction for the contravention of the rule that was contravened by the employee.

The word “appropriate” here again gives us a clue to what is “unfair”. That is, if the employer’s decision or action is inappropriate it could be unfair in labour law. The word “appropriate” in a labour law context implies that the employer’s action must be appropriate in the context of the specific situation in which the action was taken. Another way of putting this is that “the punishment must fit the crime”. If the employee is fired for a minor infringement or where circumstances reduce his/her liability a dismissal would usually be inappropriate and therefore unfair.

In summary, the act of an employer would be seen to be unfair if it is one-sided, unnecessary and/or inappropriate under the circumstances or infringes the employee’s rights. As employees have a vast number of very strong labour law rights employers need to ensure they understand these rights. They need to avoid taking any action affecting employees before checking with their labour law expert that it would be safe to take such action and how to go about it.

By Ivan Israelstam, chief executive of Labour Law Management Consulting 

South African labour legislation gives employees a plethora of rights against the employer. So much so that many employers wonder whether the resultant burden on them makes it worth continuing to run the business.

For example, employees have, amongst others, the right to:

• Join trade unions
• Go on strike
• Procedural fairness at disciplinary hearings
• A fair reason for dismissal
• Protection form unfair demotions
• Be promoted under certain circumstances
• Minimum wages in many cases
• Sick leave, holiday leave, maternity leave and compassionate leave
• Overtime pay
• Consistent treatment
• Protection from unfair discrimination
• Representation at CCMA by a trade union representative

On the other hand, labour legislation gives employers few rights; and those that they do have are very restricted. That is, employers may exercise limited rights as long as, in doing so, they do not infringe the numerous rights given to employees.

However, one area that employers can exercise their rights is that of fiduciary duty. This means that the employee has, in certain ways, the duty to put the employer’s interests first. This does not mean that the employee must, as a way of benefiting the employer, forfeit his/her rights to leave, legal working hours or fair discipline. It does mean that the employee may not advantage himself/herself unfairly at the expense of the employer.

Specifically, this means that the employee may not:

• Place him/herself in a position where his/her interests conflict with those of the employer
• Make a secret profit at the expense of the employer
• Receive a bribe or commission from a third party
• Misuse the employer’s trade secrets
• Give a third party the employer’s confidential information.

While this principle applies generally to employees it applies more strongly to senior employees. In deciding on the extent of fiduciary duty that an employee has the courts consider a number of factors including:

• The degree of freedom that the employee has to exercise discretion in making and executing business decisions
• The opportunity for the employee to exercise this discretion in his/her own interests
• The extent to which the specific circumstances open the employer to abuse of the employee’s discretion
• The extent to which the employer relies on the employee for expertise and judgement in conducting the business
• The extent to which the employee is in a position of trust.

Clearly, the more junior the employee the less these fiduciary factors are likely to prevail. That is, with some exceptions, junior employees normally do not have the right or duty to make crucial business decisions or the opportunity to misuse decision-making power.

The line between who is a senior employee and who is not and the line between who is in a position of trust and who is not are blurred. Whether, for example, a junior salesperson is in a position of trust or not depends on the specific circumstances of each case. Therefore, in order to protect itself from employees acting against the employer’s interests every employer should:

• Build in checks and balances that prevent the abuse of power
• Inform all employees of their fiduciary duties in relation to their positions of trust
• Make sure employees at all levels know the seriousness of breach of their fiduciary duties
• Take swift, fair and consistent action against employees who breach their fiduciary duties
• Obtain expert legal advice before acting against suspects.

The controversial Films and Publications Amendment Bill, labelled by some as the “Internet Censorship Bill”, has been passed by the National Assembly.

According to the Parliamentary Monitoring group, the Bill was passed by the National Assembly on 6 March and will now be transmitted to the National Council of Provinces (NCOP) for concurrence. After that it heads to the desk of the president to be signed into law.

The Bill is supposed to address the shortcomings of the Films and Publications Act of 1996, but has come under fierce scrutiny since it was first gazetted, with many calling for it to be overhauled for infringing on freedom of speech.

The Bill aims to make changes in order to provide for technological advances, especially online and social media platforms, in order to protect children from being exposed to disturbing or harmful media content. It also aims to curb revenge porn and hate speech.

According to Eyewitness News, opposition Members of Parliament (MPs) criticised the legislation saying it amounts to censorship and may be unconstitutional. The vote in the National Assembly was reportedly 189 in favour, 35 against with no abstentions.

Opponents of the Bill in the past voiced concerns over the vague and broad terminology used; stipulations that would see the Film and Publication Board (FPB) overstepping into the Independent Communications Authority of South Africa’s (ICASA’s) regulatory jurisdiction; and that it contained constitutional infringements on citizens’ right to privacy and freedom of expression. Last year, the FPB made some changes to the Bill after it received many comments from the public and industry players.

Source: ITWeb 

Social media is part of the modern fabric of interaction, with some reports suggesting that 66% of users spend time checking social media accounts while at work.

Industry tracker Mediakix suggests that popular platforms YouTube and Facebook consume one hour 15 minutes per day.

But when you leave your company, who owns your Twitter, YouTube, Facebook or even Gmail account? Legal experts in SA say the law is not clear.

“This is a grey area, and it would really depend on a thorough investigation of the history, purpose and origin of the social media account in question,” Pamela Stein, head of Employment Law at Webber Wentzel told Fin24.

“In order to demonstrate ownership, the employer would have to show that the social media account was clearly created for the purposes of promoting the growth of the business, and that this growth was achieved by social media activity generated during company time.”

Personal information

She added that factors over the ownership of a social media account would depend on whether the account had been created as part of the employment contract, or for the purpose of growing the organisation’s profile.

Unlike a company cellphone, computer or car, a social media account does not only exist on a mobile device, and the law assigns protections of personal information, as described in the Protection of Personal Information Act, which forbids unwanted sharing and exploitation of personal information.

“You have rights over your identity. However, if there was a clause in the contract of employment saying any personal account created during their employment is the property of the employer – perhaps the employer would have rights to it,” specialist technology attorney Russel Luck told Fin24, though he was careful to agree that the matter is not a settled one under South African law.

“If these accounts were set up so the employee could engage with the public as an extension of his work services, then perhaps the employer would have rights over it. Even more so if the email address used to verify the social media account is a work email, not personal one,” he added.

This reflects a US case in which Phonedog sued former employee Noah Kravitz over marketing on his Twitter account. The company alleged that 17 000 Twitter followers Kravitz had amassed was a customer list and demanded damages of $340 000.

A News24 survey revealed that 53% of social media users accessed the platforms while at while at work, and 3% said they would like to, but were not allowed.

Personal logins demand

Stein said that in SA, an employer seeking to claim a social media account would have to show just cause.

“Firstly, the employer would have to establish a basis for such a claim, and then sue the employee in the appropriate court depending on the cause of action.

“The employer could seek an order prohibiting the employee from any further use of the social media account and requiring the employee to take all reasonable steps to return the social media account to them.

“In addition, all social media sites allow users to report breaches et cetera and once such an order is obtained the social media platform could be notified and requested to assist.”

However, Luck argued that for a local company to demand personal logins to social media accounts would be a contravention of South African law.

“On the other side of the coin, SA law does follow international trends that you don’t need to give your employer your login details to your personal Facebook account – ie it’s unlawful to force an employee to do this.

“Where employers are making employment, promotion, dismissal or labour decisions based on access (or lack of access) to the personal Facebook account of an employee it would amount to unfair discrimination.”

Source: Fin24

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