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In recent times the role of the whistle-blower has come to the forefront when it comes to arbitrations as well as disciplinary action in the workplace. As companies look at ensuring they clean up their act and reinforce the fact there is no room for corruption in the workplace, a number of them have launched whistle-blowing hotlines so that an environment is created where people feel comfortable that their identity will be protected when they make a protected disclosure. What Is A Protected Disclosure? To qualify as a protected disclosure, one has to look at whether the behaviour amounts to disclosure as well as whether this would fall within the realm of a protected disclosure. Disclosure means any disclosure of information regarding any conduct of an employer, or an employee of that employer, made by any employee who has reason to believe that the information concerned shows or tends to show one or more of the following: a) That a criminal offense has been committed, is being committed, or is likely to be committed; b) That a person has failed, is failing, or is likely to fail to comply with any legal obligation to which that person is subject; c) That a miscarriage of justice has occurred, is occurring, or is likely to occur; d) That the health and safety of an individual has been, is being or is likely to be endangered; e) That the environment has been, is being or is likely to be damaged; f) Unfair discrimination as contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000); or g) That any matter referred to in paragraph (a) to (f) has been, is being, or is likely to be deliberately concealed. Protected disclosure means a disclosure made to: a) A legal advisor in accordance with section 5; b) An employer in accordance with section 6; c) A member of Cabinet or of the Executive Council of a province in accordance with section 7; d) A person or body in accordance with section 8; e) Any other person or body in accordance with section 9 but does not include a disclosure – i. In respect of which the employee concerned commits an offense by making that disclosure; or ii. Made by a legal adviser to whom the information concerned was disclosed in terms of obtaining legal advice in accordance with section 5. Organisations continuously attempt to address corruption and other illegal activities through various mechanisms, including putting these whistle-blowing processes in place. Experience shows a number of challenges that do arise from this. How To Create The Right Environment For Whistle-Blowing The Code of Good Practice booklet provides a good explanation around this and rather than re-invent the wheels, I shall quote from this: Creating a considered and detailed whistle-blowing policy is a first and necessary step for ensuring the right environment throughout an organisation and is a legal obligation in terms of the PDA. In constructing a policy, employers should consult employees and their trade union representatives to create a policy and establish procedures that will enable employees and management to raise concerns about wrongdoing. Employees and workers should be confident that their allegations will be taken seriously, that any wrongdoing that is unearthed will be dealt with, and that any persons involved whether directly or indirectly in covering up wrongdoing, will be called to account and, where appropriate, be required to reimburse the employer for undue benefits that they have received. It is important for employers to encourage employees to raise concerns that are honest even if they are mistaken. There is also a legal obligation for employers to take reasonable steps to ensure employees and workers know about the policy. Outside of a policy, it is important that all levels of management and staff speak about whistle-blowing in a language that acknowledges how useful, and vital, authentic dissent can be for an organisation. Whistle-blowers need to be understood as compatriots, who actively contribute to an effective and innovative environment. Perhaps most practically, employers , especially those in the public sector, must allocate sufficient and appropriate resources for the purpose of receiving protected disclosures. What should the Company do when Receiving a Disclosure? Again the code of good practice provides us with the following guidelines. “As mentioned earlier, if it has been requested, you should do everything you can to keep the identity of the whistle-blower confidential. You should also follow up and investigate the complaint as soon as possible or refer the complaint to someone best placed to investigate. Throughout this time, you must keep the whistle-blower aware of what actions are being taken. The PDA creates very specific rules about your obligations to inform the employee or worker of what steps to are being taken in section 38. If serious wrongdoing is revealed, the employer should take appropriate measures, including criminal and civil proceedings to recover losses that have been incurred. This is not only for financial recovery reasons – the act of following up ensures other employees that their disclosures won’t be made in vain. Particular efforts should be made to take direct action against anybody who may try and victimize the whistle-blower at work.” How do we go about Dealing with the Issue, Protecting the Identity of the Alleged Whistle-Blower, and Making Certain that the Whistle-Blower is Not in any way Exposed to any Occupational Detriment? Here particularly the Act is clear that no whistle-blower should be exposed to any occupational detriment and if they are, there could be severe consequences for those who do expose the whistle-blower to occupational detriment. Without quoting from the Act, the remedies include the fact that the courts, including the labour court, can be approached for appropriate relief or the whistle-blower can pursue any other process allowed or prescribed by any law. For the purposes of the Labour Relations Act, this would include, potentially, a case of an automatically unfair dismissal or an unfair labour practice. Employers would be well placed to protect the identity of the witness as far as possible and consider whether it would be appropriate to have an in-camera process where the identity of the witness is protected, alternatively put measures in place such as the suspension on full pay of the alleged accused, etc. to limit the risk of an occupational detriment. What if there is an Abuse of the Whistle-Blowing Hotline? The flip side of this is that people use the whistle-blowing hotline with mala fides (in bad faith). If this is established and you can identify the whistle-blower then no doubt disciplinary action can be taken against the whistle-blower for abuse of company process. The disciplinary action would flow from the abuse of the processes that are there to assist employees. Whilst a whistle-blowing hotline provides the necessary support to organisations to be able to have issues raised without fear of victimisation and to weed dishonesty and corrupt activities, no doubt this does prove challenging for organisations as has been found in my experience in disciplinary inquiries as well as arbitrations. It would be well placed for training to be provided to ensure that parties know how to use the whistle-blowing hotline and the purpose thereof as well as when they receive protection in terms of making a protected disclosure. In addition, thereto, it assists organisations in reacting, and conducting investigations properly, and leads to efficient management of such whistle-blowing reports. We have over the years assisted organisations with the investigations flowing from whistle-blowing reports as well as advice in respect of the management of complaints and/or the abuse of process. Why not contact us should you be having issues or be considering introducing a whistle-blowing hotline, the team and I would be able to assist you with our years of experience in this space and advise you accordingly sharing lessons learned from previous engagements. Let us help you through this rocky terrain and provide you with a steady hand in your process. Email me at grant@globalbusiness.co.za to get in touch. Our team can investigate, initiate, or chair disciplinary inquiry processes and assist with arbitrations flowing from these processes. We thank our clients for their continuous support and look forward to providing assistance going forward.

Written appointment of the Information Officer (IO) unless it is the Chief Executive in which case the appointment is automatic by law. Also, appoint Deputy IOs if you believe this is necessary. Register the IO and DIO on the Information Regulator (IR) website and get your certificate of registration. Draft/ update your POPI policy and practice manual. Draft an Incident Response Plan (i.e. a plan that explains what happens if the Personal Information (PI) under your or your “operator’s” management and control is compromised). Draft/update your Privacy Policy for your website and business. Set up training sessions for your managers and staff who process PI and at the training ensure that: (i) you have an attendance register. (ii) you have them sign the Annexure to the Employment Contract on POPI, and (iii) you hand out the POPI policy for their reference. Ensure your s51 PAIA manual is crafted and posted on your website. Identify all “operators” as defined and ensure you enter into/obtain their contractual terms relating to POPI. Remember at least two matters must be addressed in that POPI contract with the “operator”: (i) the operator must warrant that it complies with POPI and related PI statutes, and(ii) that it will immediately advise you if the information you provided to the operator is compromised whilst in the hands of the operator. This is because YOU will have to report the data breach to the Regulator and contact the impacted data subjects. Data subject participation: Remember that ALL previous, current, and past suppliers, employees, and clients/ customers have the right under POPI to participate in their data which basically means they must have a simple and effective channel (recorded by the employer) that allows them to contact the IO/ DIO to request UPDATE, DELETION, DESTRUCTION, OBJECTION, COMPLAINS, OPTING IN (for e-marketing purposes). Remember that from 1 July 2021, all new data subjects must give their permission for e- direct marketing before you send out marketing collateral. I highly recommend you list all systems, tech, and programmes you use and have your IT department give written assurance that all is in order – firewalls, anti-virus, user access, back-ups, encryption, etc. Finally, an impact assessment matrix requires each function to identify processes that they engage in that process PI and then to ensure the systems and staff conduct is up to scratch. If any PI is sent outside of SA borders, Special PI is dealt with or under 18-year data subjects that the necessary POPI provisions are complied with. If you have any questions about the above, please contact John Botha at john@globalbusiness.co.za .

In Mzolo v Rhodes Employer and another – (2020) 30 ECG 1.13.6 a law lecturer was charged with sexual harassment and falsely accusing the employer of racism. An outside Chairperson found the lecturer – in a disciplinary hearing – not guilty of sexual harassment but guilty on the second charge and issued a final written warning. The employer regarded the finding and sanction as unacceptable and took the view that the disciplinary hearing had been plagued with irregularities attributable to the Chairperson. The employer accordingly launched internal review proceedings, asking the internal review body to set aside the Chairperson’s finding and sanction and to substitute for it a finding that the employee was guilty. In response, the employee launched an urgent application for an order that the internal review be declared a breach of his employment contract and void ab initio. The Court found that the question of urgency had to be evaluated against the dealings between the parties since the commencement of the disciplinary proceedings. The employee had not complied with the rule which requires those seeking urgent relief to explicitly set out the circumstances which render a matter urgent. He was seeking final relief and had not adequately explained why he could not obtain substantial redress at a hearing in due course. The employee had also chosen to refer the matter to the CCMA before approaching the High Court. Forum shopping of this nature was to be discouraged. The urgency was, accordingly, self-created. The application had to fail for want of urgency. The Court held further that the legality of the pending internal review proceedings was an issue arising from the employee’s contractual entitlements. In addition, the Court found that although the University’s Disciplinary Code did not cater to an internal review process, the policy that provided for review in sexual harassment cases was in line with existing case authority and in harmony with the Disciplinary Code and the Labour Relations Act (LRA). The employer had demonstrated on the papers why it considered the Chairperson’s factual findings and sanction so grossly unreasonable, inappropriate, and shocking that it justified interference. The Code did not prohibit the Vice-Chancellor from resorting to an internal review process. The employee would not be prejudiced by that process, because he could still raise any objections he might have before the review committee. The application was dismissed with costs. Urgency cannot be self-created. Further, Codes and Procedures should cater for a review or possibly overturning sanctions that are not in line with normal practice. Attend the Year Labour Law Update & Discover More about Disciplinary Hearings If you are keen on learning more about disciplinary hearings, as well as other case law that is relevant to HR, then you need to attend our next Labour Law Update.

There were businesses in the 3IR that managed to trade and grow for decades in a relatively constant trading environment where the “bell curve” demonstrated the pace of change. Many of these organisations are no longer around and the question that begs to be answered is whether there is a golden thread that underpins whether businesses will be beneficiaries or casualties in a disruptive environment. A deep dive into many case studies – such as Blockbuster, Kodak, and Nokia as well as other household names in South Africa who have liquidated or been battered in the past two years – reveals interesting similarities in seeking cause and effect of their respective fates. The reality is that businesses need to respond to exponential change while people only change logarithmically which leaves a glaring strategic gap. The Role Of Leadership In A Disruptive Environment The first port of call in seeking answers to this matter is leadership. Leadership sets the tone. However, in a disruptive environment, leaders are still too focused on taking charge of those in their care, rather than equally taking care of those in their charge. This view of Simon Sinek hits at the heart of the matter. Work and personal life have become intertwined and the emotional impact of change, disruption, and loss must be dealt with if employees are to perform. Heightened emotions are people issues and people issues can only be addressed through human connection. Sadly, many managers do not see it this way and adopt a ‘rank-and-yank’ attitude of fit in or else. In this way, entire businesses collapse over time as employees do not trust their managers. They withhold innovation and creativity as well as do just enough to get by. This is a recipe for disaster. On the contrary, leaders who connect with their employees, create a circle of trust, and can exercise EQ off the back of knowing who they are – and taking the time to get to know their colleagues – will not only enjoy more energy and innovation but also be more agile and resilient. Operational execution is the natural result of strong trust where people are valued, listened to, and engaged. Take a look at the workplace skills plans of 95% of businesses and it will be clear that managing with EQ is not a priority. The secret of an organisation’s future is hidden in the cumulative routines of its employees and leaders. It is this inability to empathise, and identify the needs of clients and employees (human-centricity) that is probably one of the most significant reasons for businesses being casualties rather than beneficiaries of change. If you’d like to get in touch, please don’t hesitate to contact me at john@globalbusiness.co.za .

There is nothing in the South African Constitution – or any other law in South Africa – which prevents an employer from implementing a compulsory vaccination policy at organisations. The Direction on Occupational Health and Safety is the guideline law that requires you to consider the Constitutional rights of employees in implementing policies – such as a vaccination policy – specifically when it comes to the future employment prospects of employees. The route regarding the implementation of a compulsory vaccination policy is clearly laid out in the Direction and this requires a proper analysis as to why the organisation would require this type of policy at the workplace. If your employees are in close contact in your workplace, and this close proximity is a requirement for them to do their jobs, then there needs to be a consultation process which the recognised trade union (if the organisation has one) and the Occupational Health and Safety committee need to be a part of. After this process, an employee’s refusal to be vaccinated could result in their dismissal. During the compulsory vaccination implementation process, employers will need to take into account religious, medical safety, cultural, and other similar objections of the employee who refuses to get the vaccination. Of course, whether your policy is fair and reasonable could eventually be adjudicated by a dispute resolution body like the CCMA, Labour Court, Labour Appeal Court, and eventually the Constitutional Court. It is my opinion that after such a procedure – and having a good rationale (an inherent requirement for doing a compulsory vaccination at a workplace) – eventually, the likely dismissal would be one based on operational requirements. The interesting case would be that you could then, as an alternative to dismissal after refusal of a vaccination, follow the retrenchment process in sections 189 or 189A pf the Labour Relations Act. The organisation could offer no retrenchment package as a reasonable alternative to a job that had been offered – that reasonable alternative being a vaccination with all the necessary protocols in place. Always Have Clear-Cut Policy The above process includes a fair, reasonable, and justifiable vaccination policy, a process to engage with employees to understand the underlying rationale of the refusal, and to determine the underlying employees’ concerns as well as how they could be addressed. In determining the risks of having unvaccinated employees at the workplace, an employer could consider various factors including – but not limited to – the types of vaccinations employees have taken and the efficacy of specific vaccines against the transmission of COVID-19. With the rise in the Delta variant, we can see that this is highly transmittable. This is therefore further support of the inherent requirements of compulsory vaccination and a justifiable rationale for workplaces. We know that the Department of Health was very keen on a compulsory vaccination policy hence the inclusion thereof in the Direction. If you would like to contact me to discuss the implications of a COVID-19 vaccination policy in your workplace, please email me at johnny@globalbusiness.co.za .

As our world gets busier, our phones get beepier and meetings are scheduled back-to-back, the scarcest resource of all is time. Life in a world of doing accelerated by technology, speed, profitability, and change has made us forget about the world of being, which thrives on human connection. This includes being connected to our own needs and personal energy. Many of us have “mastered” the art of making a living but we have forgotten how to make a life. The treadmill of life is only getting faster, and many just can’t seem to get off. Living in the Fourth Industrial Revolution and being ‘on the cusp’ of the fifth one, we should be thinking of ways to make the world ‘better’ rather than just ‘more efficient’ or ‘more productive’? However, research conducted by Metcalf showed that there is an increased expectation to deliver results faster. (Metcalf, 2021) More Data Vs Less Common Sense? How is it then that we have so much knowledge at our fingertips, more experts, and more data, yet we seem to have less common sense, less willpower, and less fulfillment? We are aware of the impact of making healthy choices for ourselves but because of a need for more efficiency and higher productivity, we continue to abuse our bodies and minds with bad food, lack of exercise, poor sleep, and excessive linkage to technology. Many of the leaders and employees we advise, will tell us, “It’s so busy, I can’t afford to…not have my emails on my phone, take lunch, or book reflection time in between meetings.” The truth is that by not creating personal psychological boundaries and making time to re-energise, is doing both you and your organisation a great disservice. This is evident in the disconnection seen in the modern workplace, such as burnout, job dissatisfaction, absenteeism, abuse of sick leave, high turnover, and adherence difficulties. We Cannot Be Productive If We Do Not Put Our “Oxygen Mask” First When traveling by airplane, the passengers are always reminded to put the oxygen mask first before attempting to help others. Why is it that we do not listen to this advice when it comes to workplaces? Without tapping into one’s inner resources to manage energy meaningfully and effectively, our performance and time spent will not be optimal. While the sheer enormity of the tasks we face each and every day may seem overwhelming, awareness is the first step towards change – and it is reassuring that research shows that there is growing momentum in the right direction. Attend ‘ Time Management Vs Energy Management Course – Presented By Circle & Square If you have a group of people who want to do this course, we’re able to run it as an in-house course. If you’d like to chat with us further about this course, please connect with us. It is time to slow down the treadmill and take stock.

Your workforce and employee performance are the lifeblood of your company. But creating a good work environment involves more than putting a pool table or a ‘relaxation zone’ in the office. It involves helping your staff develop both as individuals and as part of your team. This is where the importance of a sound employee performance management policy cannot be understated. There are many benefits of a well-crafted employee performance management system policy. Here we share just two thoughts for your consideration: It promotes open and constructive communication. Transparent and honest communication promotes high morale, cohesion, and trust among your staff. Employees need regular, quality feedback on their performance. They also need specific details on how they can improve. It increases productivity and reduces costs. Overall, an ongoing focus on performance management provides better business results: It keeps the focus on key goals, reduces costs and drives profitability. Should you want to discuss this or any of their services further, contact Ryan Coates by e-mail at ryan@reddotnow.com . Red Dot Now provides accounting, payroll and tax compliance services using the best-of-breed online technology.

We are in a time of tremendous change… this is a change that came about without anyone asking for it or volunteering that it arrives on their doorstep. But as we have come to realise, whether we like it or not, we are unable to control the external factors in our world. To quote Thomas Paine: “These are the times that try men’s souls.” Where we need to shift our mindset is from one of wanting to control the external factors that are making us feel disempowered and alienated to one where we can feel empowered and involved. While we are unable to change what is going on around us, we are able to be in control of our own personal worlds. What Does This All Mean? This means that there are certain elements that are in our control and the power we have in this realm, is to make a CHOICE! It is during these times of crisis when either the worst or the best in people, emerge. We can choose whether we want to be leaders or victims. Choose whether we want to be fearful or courageous. Choose to become a Hero – a hero of love, dedication, sacrifice, leadership, clarity, resilience, wisdom, and deep spirituality and faith. This is a time when we can choose clarity, resolve, and strength. A time when we can choose to feel inspired and be an active participant in becoming the greatest and best version of ourselves. Allowing our inner strength to emerge. HOW? In practice, a very simple yet impactful tool is the skill of listening. Listening in the true sense of the word… with attentiveness. Giving the people around us, whether in person or virtually (by phone or Zoom) a safe space in which to honestly share where they are at and show their true feelings and emotions. While providing this space for the other person, we need to be fully present. Keeping our cameras on, nodding our heads, asking questions that relate to what is being said, and not looking at how to shorten the engagement by ‘problem-solving’ are just some of the small yet profound behaviours we can display to be a support for the people around us. Let us choose for this to be a time when we can make our own worlds thrive and become the greatest and best versions of ourselves. Make the choice to be a leader – to yourself, your family, loved ones, friends, and your community. And a leader to the world. If you want to discover more about making choices to safeguard your energies and prevent burnout, you need to attend our Time Management Vs Energy Management Course on 22 July. If you have a group of people who want to do this course sooner, we’re able to run it as an in-house course.

A question often asked of job applicants in interviews is: “Where do you see yourself in three years from now?” This telling question is answered mostly in a manner that will hopefully impress the interviewer. However, the true answer to this question lies within the answer to the question relating to one’s daily routine as highlighted by John Maxwell and other authors. Whatever you do with your limited time will determine the outcomes that will manifest. It is a law of nature. In today’s world, and in our daily routine, we suffer from a time famine: not enough time to do the things we need to and want to do. All too often, organisations fail to consider the management of personal energy and the effect this might have on productivity and employee well-being. This is evident in the disconnection seen in the modern workplace, such as burnout, job dissatisfaction, absenteeism, abuse of sick leave, high turnover as well as adherence difficulties. Without tapping into one's inner resources to manage energy meaningfully and effectively, our performance will not be optimal. Employers will be well-positioned to engage with employees and run programmes focused on areas such as: Understanding personal energy, The Psychology of Burnout and Recovery, The Neuroscience of Energy, The importance of self-preservation, Tools and techniques to enhance personal energy, Understanding the importance of psychological boundaries, and The Theory of Cure vs Care It is time for you to make the connection of ultimate concern. Connection is not just a skill – it is an art, just as living is an art. And if you want to learn how to connect you have to proceed as you would with any other art. So step one is to know the theory of connection but now we have to go one step further and make the connection of ultimate concern. But why would you want to make a connection of ultimate concern? The truth is, whether you like it or not, you have to take it on and you need to adopt this way of thinking with your employees. Connection equals health and as we grow more disconnected in this square world – disconnected from our land, our families, and our communities, so we have more of a need to make connections of ultimate concern if we value health. So we are here today to make the connection of ultimate concern because we are firm believers that it is the ultimate goal for health in our daily routine both at home and at work. Our vision, at Circle & Square, is to humanise corporate South Africa by making use of the skills and insights of clinical psychology in addition to our proprietary Circle & Square methodology. We are proud to be preferred partners to Global Business Solutions and would be honoured to share our insights with your organisation. Pop us an email at connect@circleandsquare.co.za – we’d love to chat with you!

We all know that diversity in teams allows them to perform better when there is a sense of inclusion and belonging. This is mostly because every human being is unique and therefore brings unique individual perspectives that emanate from different characteristics, backgrounds, values, skills, and experiences. This in turn enhances creativity and innovation. Research has also shown that diverse work teams provide a competitive advantage which results in better profits. The Employment Equity Act and our Constitution promote a diverse working environment by putting an obligation on employers to not unfairly discriminate against any employees on either prohibited or arbitrary grounds. When conducting due diligence proceedings on the representativeness of the employment equity steering committee, most employers ensure that the committee represents designated and non-designated groups, all occupational levels, and all workplaces. But doesn’t workplace diversity mean much more than that? The Employment Equity Act specifies that discriminating against an employee on the basis of race, gender, sex, pregnancy, marital status, family responsibility, ethnic social origin, colour, sexual orientation, age, disability, religion, and HIV status is prohibited. It is well worth noting that diversity and inclusion go way beyond race and gender. So, if you consider the aforementioned prohibited grounds: How informed is your committee on these aspects that can often become a barrier to workplace inclusion and can also have a significant impact on individual performance? To what extent are issues of age, marital status, religion, sexual orientation, and gender barriers towards workplace inclusion and belonging in your workplace? How tolerant are other employees when they deal with their colleagues’ seemingly “different” cultures, beliefs, sexual orientations, and transgender statuses? If employment equity steering committee members cannot personally relate to at least these key aspects, then they should explore other avenues to gain a better understanding of the workplace experiences of the employees they represent at this forum. While diversity and inclusion training should be the first step for the committee, as well as diversity and inclusion awareness sessions for all employees, establishing smaller focus groups – who represent identified areas of diversity and can keep the committee informed on special events and critical aspects – will also be valuable. This can also be augmented by establishing open channels of communication (anonymous ballot boxes and online surveys can both work well) which will provide employees with a platform to informally share information on their own personal experiences in the workplace, from their unique perspectives. A good case in point is Eid al-Fitr, a religious holiday that is celebrated by Muslims worldwide and which marks the end of the month-long fasting of Ramadan. This year it began on the evening of 12 May and ended on the evening of 13 May 2021. Coincidently, 13 May 2021 was also the Day of Ascension, which is a very important holy day for Christians, who commemorate the ascension of Jesus on this day. Neither of these days appears on the public holiday schedule of South Africa, but it still remains an important day. How are you treated these days in your workplace? If you totally ignored it, and at least you were consistent, if you only recognised one of them and ignored the other, you may have unintentionally discriminated against some of your employees. If diversity matters, hearing the voice of the diverse workforce matters even more. And then, acting appropriately upon what you hear, matters the most. Please do get in touch with me, at marianne@globalbusiness.co.z a if you have any HR-related matters in your organisation that you need assistance with.