LITTLE WHITE LIES CAN GET YOU INTO BIG TROUBLE

October 2019, was Justice month as Ramaphosa signs in various new laws, one of them being CV Fraud. Do you embellish your curriculum vitae to increase your chances of procuring a new job? A fake matric certificate, inflated education, fake degree certificates and unfinished degrees are some of the common embellishments that are found on a CV.

Ramaphosa signed in the new National Qualifications Framework Amendment Act (hereinafter referred to as the “Act”), which aims to prevent South Africans from mispresenting their qualifications in their curriculum vitae. Misrepresentation of your qualifications persuades the employer to offer you employment under false pretence, as you would probably meet their requirements. Mispresenting yourself on your CV can also be career-limiting, as we live in the digital age, where information is at our fingertips and it will not be long before it is discovered that the qualification or skill is fraudulent.

This Act permits the South African Qualifications Authority to establish and maintain separate registers for professional designations, misrepresented qualifications and fraudulent qualifications. This register will name those who misrepresent themselves and/or fraudulently list false qualifications on their CV. It will also be considered an offence if falsified information is entered into the register, hence if your name is on the register, it will be taken seriously. But the Act goes further, bragging on social media platforms such as Facebook, LinkedIn, etc. that you have a qualification which if found to be false, is now considered a serious offence as well.

The amendments to the Act introduces punitive penalties for those found to be lying in their CV. The penalty for CV Fraud is a fine or up to five years imprisonment.

But the Act has also placed an administrative as well as a monetary burden on employers and educational institutions, skills development providers and quality councils, who before appointing and or registering any person, must verify whether any qualification of such person is registered on the national learners’ record database. Should it be found that the qualification is not registered, it must be referred to the South African Qualifications Authority for verification, who will conduct the verification at a prescribed fee.

The Act makes provision for there to be consequences for education institutions and education skills providers who falsely claim to be registered on the National Qualifications Framework.

Good faith can also get you out of “hot water”. If you did a qualification in good faith believing it was a legitimate qualification, this can be used as a defence if charged with contravening the Act and you may be acquitted and the relevant institution will be charged and may be liable to a fine and criminal conviction.

Do you have an onus to report if you are aware of someone who misrepresented themselves on their CV and does not report them? No, you do not. You will not face legal charges if discovered that you were aware but did not report it.

Examples of top executives that have lied on their CV is Passenger Rail Agency of South Africa (Prasa) suspended its chief engineer, who subsequently resigned amid allegations that he falsified his qualifications. Daniel Mtimkulu headed the engineering team that designed new Afro 4000 locomotives delivered to South Africa in January, at a cost of R600 million. He reportedly claimed to have an engineering degree from the University of the Witwatersrand (Wits), before studying in Germany to get his doctorate. Wits, however, said it did not have any record of Mtimkulu attending the university.

Some other examples to note, include Pallo Jordan, a former South African cabinet minister, who claimed to have a doctorate from the London School of Economics, when he did not; Hlaudi Motsoeneng, SABC COO, claimed to have a matric certificate, which was untrue; and Ellen Tshabalala, former SABC chairperson, who claimed to have postgraduate degrees from UNISA, which remains elusive.

In 2015, a screening company noted that there was a record high of CV Fraud and this could be due to the unemployment rate in South Africa, but one has to ask, is it worth it being unemployed permanently due to fraudulent misrepresentation or achieving a degree and being employed permanently?

Employers be sure to check your potential job applicants and ensure you’re employing the best and legal employees!

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THE IMPORTANCE OF MENTORING AND COACHING

Mentoring trends challenge individuals to develop and manage themselves and are becoming an integral part of productive performance and increased learning. It can help in career development, strategic planning, skills development, employment equity and building relationships and leadership potential.

What is mentoring?

Mentoring refers to a partnership between two people with the main aim of development. Usually, the mentor is an experienced individual who shares their knowledge and experiences, while giving advice to a less experienced person, i.e. the mentee. The relationship may be between two people from the same company, industry, or networking organisation.

The value of mentoring programmes

Mentoring programmes are generally focused on achieving a number of objectives for both the individual and the company. These objectives usually include the individual being able to perform specific tasks while their personal and career development needs are also taken into consideration. By means of mentoring programmes, employees get enabled to leverage some of their academic knowledge in the workplace and in addition, they will gain knowledge of an organisation’s culture.

Mentoring serves the purpose of conveying knowledge to inexperienced employees. The idea is to teach employees the core skills they will need to fulfil an efficient role in the workplace. Mentoring can enhance morale, motivation and productivity and reduce staff turnover and hence employers seek mentoring for performance enhancement rather than the correction of a performance issue.

Benefits of mentoring

There are benefits for both mentees and mentors; it is not only the mentee that gains valuable insight. By means of mentoring, both the mentor and mentee will learn to communicate more effectively, especially if they are from different backgrounds. New perspectives and ways of thinking are learnt. Both parties also get the opportunity to work on their leadership skills.

So, whether you’re on the giving or receiving end of a mentoring relationship, either way, it can benefit your career. Mentoring is essential to the work environment and companies should allocate appropriate funds to develop their staff, and as a consequence, their company.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

DO YOU HAVE A WORK-LIFE BALANCE?

Having a job and a steady income plays a significant role in any person’s life, as it keeps us afloat and drives us to reach our full professional potential. However, when we have an unhealthy work-life balance, this can all come tumbling down. An employee’s ability to establish and maintain a healthy balance between their work and personal commitments and responsibilities is referred to as a work-life balance. Companies have begun to recognise the importance of helping their employees to achieve this balance. Work responsibilities have also seen an increase recently and this leads to increased stress among employees as they struggle to find a balance between work and personal commitments.

Over the years, there have been dramatic changes in employees’ work patterns, as well as how and where they work. More and more companies have begun to embrace the digital and technological age, which means that work is no longer restricted to the workplace only. Technology enables employees to work anytime, anywhere, and from any internet-enabled device. This means that employees can be reached by employers and even clients 24/7, which makes achieving a healthy balance between work and your personal life even more difficult.

Having an unhealthy work-life balance has a negative effect on both employees and the companies they are employed by. Having an unhealthy work-life balance leads to high levels of stress which results in decreased productivity. Increased stress can also lead to health problems and absenteeism, which costs the company money. Finally, personal relationships and co-worker relationships amongst the employees can suffer, and lead to reduced job satisfaction.

Companies can implement various policies that will aid their employees in establishing and maintaining a healthy work-life balance. Many companies have started to provide their employees with flexible working hours, which helps employees shape and mould their work pattern to fit into their personal schedules. This reduces the conflict between professional and personal responsibilities significantly. Managers can also encourage their staff to use their annual leave, and set clear boundaries which state that staff should not respond to work-related emails and calls during non-working hours.

Finally, it’s not all about job satisfaction, personal satisfaction is equally as important. An employee’s ability to meet personal commitments has an enormous impact on their professional success. When employees have the opportunity to meet these personal commitments, it benefits the company, as the employee is not experiencing conflict between their professional and personal lives.

Helping employees establish and maintain a healthy work-life balance leads to increased job satisfaction as well as increased loyalty to their employer.

Once a company recognises the benefits of healthy work-life balance and implements policies to promote this balance, they will experience an enormous increase in productivity and increased retention of staff, which ensures that the company continues to thrive and succeed.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CAN I BE FAIRLY DISMISSED FOR ILL HEALTH OR INJURY?

The Code of Good Practice: Dismissal is governed by Schedule 8 of the Labour Relations Act. The Act recognises 3 (three) grounds on which termination of employment might be justified. These are the conduct of the employee, the capacity of the employee and operational requirements of the business. It is the capacity, more specifically the incapacity, of the employee that is our current focus of the article.

Incapacity based on ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances or the employee has used too much sick leave due to ill health, the employer should investigate the extent of the incapacity or illness. If the employer discovers that the employee is likely to be absent from work for an unreasonably long period, the employer should investigate all the possible alternatives short of dismissal. In other words, the employer should attempt to accommodate the employee in any other way other than dismissal as an ultimate last resort.

Section 1 of the Act read with Section 27 of the Constitution both refer to the right of every person to fair labour practices. This is particularly relevant as the employee has the right and should be allowed the opportunity to state a case in response to the investigation and to be assisted by a trade union representative or fellow employee.

The investigation conducted by the employer into the circumstances of the employee should be approached from a mindset of attempting to resolve the problem by some sort of counselling and not from a mindset of misconduct and discipline.

What is the test to determine whether dismissal arising from ill health is fair or not?

Any person faced with answering the above-mentioned question should always consider whether or not the employee is capable of performing the work. If the employee is not capable of performing the work, then the extent to which the employee is able to perform the work, the extent to which the employee’s work circumstances might be adapted to accommodate the illness and the availability of any suitable alternative work for the employee must be considered.

The above considerations were confirmed in Steenwerke v Bobbejaan N.O. and Others where the Court emphasised the factors to be considered when any person determining whether a dismissal arising from ill health is unfair or not. The Court went further by stating that item 10 of Schedule 8 places a duty on the employer to make recommendations or find alternative duties for the employee and not the other way round.

Where the situation arises that the employee can no longer perform work in his/her position due to an incapacity based on ill health, the employee is unable to be accommodated and/or there exists no appropriate alternative employment within the company or otherwise, the employer may terminate the employment relationship by reasonable notice to the employee.

An employer who summarily dismisses an employee without taking into account the listed considerations mentioned above as contained in Schedule 8 of the Labour Relations Act, stands a higher chance of possibly acting substantively and/or procedurally unfair.

Reference List:

  • Section 27 of the Constitution of the Republic of South Africa, 1996.
  • Schedule 8 of the Labour Relations Act No. 66 of 1995.
  • Steenwerke v Bobbejaan N.O. and Others (JR923/2013) [2016] ZALCJHB 60 (22 February 2016).
  • Ivan Israelstam Disciplinary Hearings: Employees’ Rights.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CAN I BRING MY ATTORNEY WITH TO AN INTERNAL DISCIPLINARY HEARING?

According to item 4 of the Code of Good Practice (“the code”), the definition of dismissal contained in Schedule 8 of the Labour Relations Act (“LRA”) states that, when an employee is charged with misconduct, “[t]he employee should be allowed… the assistance of a trade union representative or fellow employee”. However, what happens in the instance when you do not belong to a trade union, or alternatively, a fellow employee is unwilling to assist you?

An employee does not automatically have the right to a legal representative during a disciplinary hearing held at their workplace. However, the employee may bring a formal application prior to the hearing for the presiding officer to consider allowing an external representative to assist the employee at the disciplinary hearing.  When exercising such discretion, the presiding officer should take certain factors into account, and the decision in respect of such an application is final, although the employee can still refer a dispute to the CCMA or Bargaining Council for procedural unfairness.

These are the factors to be considered:

  • The company policy;
  • The serious nature and complexity of the matter (whether it is in respect of a point of law or the merits of the matter);
  • The potential severity of the consequences of an adverse finding;
  • The potential adverse effects on both parties, if legal representation is allowed in comparison to when it is not allowed.

However, what happens when the employer blatantly refuses the application, or the company policy prohibits the use of an external legal representative during a disciplinary hearing?

In the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani, the Supreme Court of Appeal held that even when the employer’s disciplinary policy prohibits the use of an external representative, it may be allowed in certain circumstances. The court held that the employer’s policy must be viewed as a guideline, which may be departed from under appropriate circumstances. Therefore, ultimately leaving it to the presiding officers to decide.

In Molope v Mbha and Others, the Labour Court held that even though the dismissal of an employee who was charged with the unauthorised use of funds was substantively fair, the dismissal was procedurally unfair. The employee, prior to the disciplinary hearing, requested a postponement of the said hearing, in order to obtain an external representative as a fellow employee who had agreed to assist the accused employee decided to no longer assist shorty before the hearing.  The employer however refused the postponement.

The decision of the presiding officer on such application is final. However, should the employee wish to appeal against this decision, the employee still has the option of referring the dispute to the CCMA or Bargaining Council for procedural unfairness upon the completion of the disciplinary process.

Therefore, should employers not disclose the option to use an external representative, via their policies or the notice of disciplinary hearing, it does not preclude employees from seeking the assistance of such representative. In the light of the above, it must still be kept in mind that it is not illegal for an employer to have a policy prohibiting assistance from external representatives. However, should the employee wish to make use of external legal representation, the request must be duly considered based on the aforementioned factors, as opposed to a mere outright denial of the request.

Sources:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THE 10 STEPS WHEN TAKING A DISPUTE TO THE CCMA

If you have a dispute with your employer, you may want to ask the Commission for Conciliation, Mediation and Arbitration (“CCMA”) to conciliate or even arbitrate your dispute. A union or employer’s organisation may also initiate this action. Furthermore, you do not need the other party’s consent before taking a matter to the CCMA.

Steps for disputes at the CCMA

According to the CCMA, the steps involved in resolving a dispute include:

Step 1: In the case of an unfair dismissal dispute, you have only 30 days from the date on which the dispute arose to open a case, if the case is an unfair labour practice, you have only 90 days and, with discrimination cases, you have six months.

Step 2: If you have decided to lodge a dispute, you need to complete a CCMA case referral form (also known as LRA Form 7.11.).

Step 3: Once you have completed the form, you need to ensure that a copy is delivered to the other party and you must be able to prove that a copy was sent.

Step 4: You do not have to bring the referral form to the CCMA in person. You may also fax the form or post it. Make sure that a copy of the proof that the form had been served on the other party is also enclosed.

Step 5: The CCMA will inform both parties as to the date, time and venue of the first hearing.

Step 6: Usually the first meeting is called conciliation. Only the parties, trade union or employers’ organisation representatives (if a party to the dispute is a member) and the CCMA commissioner will attend.

Step 7: If no agreement is reached, the commissioner will issue a certificate to that effect. Depending on the nature of the dispute, the case may be referred to the CCMA for arbitration or the Labour Court as the next step.

Step 8: In order to have an arbitration hearing, you have to complete a request for arbitration form, (also known as LRA Form 7.13.). A copy must be served on the other party (same as in step 3).

Step 9: Arbitration is a more formal process and evidence, including witnesses and documents, may be necessary to prove your case. Parties may cross-examine each other and legal representation is allowed. The commissioner will make a final and binding decision, called an arbitration award, within 14 days.

Step 10: If a party does not comply with the arbitration award, it may be made an order of the Labour Court.

Reference:

  • The Commission for Conciliation, Mediation and Arbitration | CCMA| http://www.ccma.org.za/Advice/Referring-a-Dispute

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

DOES SOUTH AFRICA HAVE A PUBLIC RETIREMENT INSURANCE SCHEME?

My husband’s employer made provision for an occupational retirement vehicle, but my employer refuses to do so. Is there any possible recourse for me in this situation?

There is currently no public retirement insurance scheme in South Africa. This is quite a predicament for most South Africans, as the majority of persons employed in the informal economy would have to rely on an old age grant (which is currently R1, 690.00 and will increase with R10.00 on the 1st of October 2018) rather than occupational retirement. This leaves one with the alternative options of either a private retirement fund or a provident fund.

Some employees are lucky enough to be given the choice between a pension or a provident fund, when they are employed. However, there is no statutory obligation on an employer to provide such a choice to their employee. In the case of a provident fund, the contributions of members are not allowed as tax deductions and, when the member reaches the retirement age, the whole benefit will be paid out in a lump sum. In contrast, with a pension fund, the member gets one third of the total benefit in a cash lump sum and the other two-thirds is paid out in the form of a pension over the rest of the member’s life. The contributions to a pension fund are deductible for tax, which offers the member some tax benefits.

Independent contractors, the self-employed, and other persons who do not qualify to join occupational retirement funds, are left with no other option but to turn to private retirement annuities. The high-income employees also tend to invest their monies in this option to secure a comfortable retirement.

The private retirement scheme option has now taken up the responsibility of a social insurance scheme.

In his budget speech on the 21st of February 2018, the Finance Minister, Malusi Gigaba, declared that the old age grant would increase by the 1st of October 2018. This is the last option for those whose retirement plans have failed, or the only option for most informal economy employees or low-income employees.

With the lack of a public retirement insurance scheme, employees who are not fortunate enough to be given the option of an occupational retirement vehicle are left with no other alternative but to turn to a private insurance scheme. This decision is however also dependant on a “practicable” salary. There is currently no statutory obligation on employers to provide for an occupational retirement scheme.

Sources:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

AVOID DISCRIMINATION WHEN POSTING JOB POSITIONS

Recruiters should be careful when posting job positions so as not to land themselves in hot water with the Advertising Standards Authority of South Africa (ASA). In a recent incident, a respondent using the industry news website Bizcommunity, had to issue an apology for posting a job position with “Native English Speaker” as a requirement.

Excluding applicants on the basis of language, race or ethnicity

Mr Zibi lodged a consumer complaint against an advertisement which appeared on the website’s job listings. Among the advertised requirements was, “Native English speaking”.

Zibi claimed that the advertisement is discriminatory on the basis of language, which is a violation of the South African constitution and labour law.

The respondent in the matter claimed that the advertisement had already reached its expiry date and that the phrase is common. However, after having had internal talks around the issue, they decided to amend the advertisement to avoid any future types of these complaints. The amendment involved changing the position requirement to “Exceptional English writing and communication skills”, which they believed should address the issue.

Tread lightly

Although it was a small incident, it should not be treated casually, since some people may not be satisfied with an apology. The damage it could potential do to a company’s image should also not be underestimated. A simple error may lead to an extensive amount of time being taken to rectify the problem, which means a loss of money.

Reference:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

HOW BINDING ARE BODY CORPORATE FINES?

In an estate or sectional title scheme, it is challenging to ensure that everyone will stick to the conduct rules and to aid this, body corporates often fine the chancers. How far can the body corporates stretch their fining, and are these fines binding?

Each body corporate may choose what to impose formally in their code of conduct unless a rule is already part of the conduct rules in terms of the Sectional Titles Act. This is the only way the fines can be binding as enforceable, and they have to be reasonable and fair.

When fines are imposed, they cannot favour or benefit certain residents while leaving others out of mind. Substantially, they must serve the same purpose. The notification of a fine must be received by the owner or resident through writing. There is a correct way in which fines may be imposed:

  1. Complainants to lodge complaint

This must be lodged in writing or through an incident report to the trustees or the estate’s managing agent.

  1. Notice of particulars of the complaint

The owner and the tenant, or the resident, must be given a notice of the particulars contained in the complained as well as reasonable time to respond to the complaint. The resident/tenant must also be given enough information regarding the incident, including the rules that they may have broken.

  1. Second notice

Should the owner or resident not heed the first notice, a second notice may be issued mentioning the contravention is continuous or has been repeated. The transgressor must then be invited to a trustee meeting where they will be given a platform to present their case or defend themselves.

  1. The hearing before the fine

Before a fine is imposed, a hearing must have taken place. In the meeting, witnesses may be called to testify in favour of the transgressor and the transgressor may state their side of the story. Those who laid the complaint may also be cross-examined.

  1. Discussing evidence

Once the hearing is over, the trustees may then review the evidence presented to them and make a decision on whether or not to impose the fine.

If a fine is imposed, the amount should be reasonable, substantial and be proportionate to the purpose of the penalty.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CAN I BRING MY ATTORNEY WITH TO AN INTERNAL DISCIPLINARY HEARING?

According to item 4 of the Code of Good Practice (“the code”), the definition of dismissal contained in Schedule 8 of the Labour Relations Act (“LRA”) states that, when an employee is charged with misconduct, “[t]he employee should be allowed… the assistance of a trade union representative or fellow employee”. However, what happens in the instance when you do not belong to a trade union, or alternatively, a fellow employee is unwilling to assist you?

An employee does not automatically have the right to a legal representative during a disciplinary hearing held at their workplace. However, the employee may bring a formal application prior to the hearing for the presiding officer to consider allowing an external representative to assist the employee at the disciplinary hearing.  When exercising such discretion, the presiding officer should take certain factors into account, and the decision in respect of such an application is final, although the employee can still refer a dispute to the CCMA or Bargaining Council for procedural unfairness.

These are the factors to be considered:

  • The company policy;
  • The serious nature and complexity of the matter (whether it is in respect of a point of law or the merits of the matter);
  • The potential severity of the consequences of an adverse finding;
  • The potential adverse effects on both parties, if legal representation is allowed in comparison to when it is not allowed.

However, what happens when the employer blatantly refuses the application, or the company policy prohibits the use of an external legal representative during a disciplinary hearing?

In the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani, the Supreme Court of Appeal held that even when the employer’s disciplinary policy prohibits the use of an external representative, it may be allowed in certain circumstances. The court held that the employer’s policy must be viewed as a guideline, which may be departed from under appropriate circumstances. Therefore, ultimately leaving it to the presiding officers to decide.

In Molope v Mbha and Others, the Labour Court held that even though the dismissal of an employee who was charged with the unauthorised use of funds was substantively fair, the dismissal was procedurally unfair. The employee, prior to the disciplinary hearing, requested a postponement of the said hearing, in order to obtain an external representative as a fellow employee who had agreed to assist the accused employee decided to no longer assist shorty before the hearing.  The employer however refused the postponement.

The decision of the presiding officer on such application is final. However, should the employee wish to appeal against this decision, the employee still has the option of referring the dispute to the CCMA or Bargaining Council for procedural unfairness upon the completion of the disciplinary process.

Therefore, should employers not disclose the option to use an external representative, via their policies or the notice of disciplinary hearing, it does not preclude employees from seeking the assistance of such representative. In the light of the above, it must still be kept in mind that it is not illegal for an employer to have a policy prohibiting assistance from external representatives. However, should the employee wish to make use of external legal representation, the request must be duly considered based on the aforementioned factors, as opposed to a mere outright denial of the request.

Sources:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)