South Africa has long been recognised for its journey towards democracy and the promotion of human rights. In line with this commitment, the country is currently deliberating a hate speech bill in parliament, aiming to address the rise of hate speech and unfair discrimination. This proposed legislation holds significant implications for workplace conduct, particularly for leaders, managers, and employees. In this article, we will examine the hate speech bill and explore how it may impact the behaviour and responsibilities of individuals within the workplace. Understanding the Hate Speech Bill The hate speech bill seeks to regulate and criminalize hate speech, as well as other forms of discrimination, in South Africa. It aims to provide a clear legal framework to combat hate speech and protect marginalized communities from targeted abuse. The bill aligns with South Africa’s constitutional commitment to equality, freedom of expression, and the prohibition of unfair discrimination. Key Provisions of the Hate Speech Bill Definition of hate speech: The bill provides a comprehensive definition of hate speech, which includes any communication that promotes or incites harm, violence, or hatred based on race, ethnicity, religion, gender, sexual orientation, or any other protected characteristic. Criminal liability: The proposed legislation imposes criminal liability for hate speech offenses, including fines and imprisonment. This provision demonstrates the seriousness with which the South African government intends to tackle hate speech. Liability for employers: The bill also holds employers accountable for hate speech offenses committed by their employees in the workplace. This provision places greater responsibility on employers to create a safe and inclusive environment, free from hate speech and discrimination. Impact on Workplace Conduct Increased awareness and sensitivity: The hate speech bill is likely to raise awareness about the consequences of hate speech in the workplace. Leaders, managers, and employees will need to become more sensitive to their language and actions, fostering a culture of respect, diversity, and inclusion. Strengthened policies and training: Organizations will need to review and update their policies on harassment, discrimination, and hate speech to align with the new legal requirements. Comprehensive training programs can help employees understand the boundaries of acceptable behaviour and the potential consequences of their actions. Promoting diversity and inclusion: The hate speech bill may serve as a catalyst for organizations to prioritize diversity and inclusion initiatives. Employers will need to actively promote a workplace culture that celebrates differences, embraces diversity, and ensures equal treatment for all employees. Enhanced disciplinary measures: Organizations may need to implement stricter disciplinary measures to address hate speech incidents promptly. Employers must establish clear procedures for reporting offenses and investigate complaints diligently. This approach will help create a safe and supportive environment for employees. Encouraging dialogue and education: The hate speech bill provides an opportunity for organizations to foster open dialogue and educate employees about the importance of respectful communication. By engaging in constructive conversations, employers can promote understanding, empathy, and awareness of the potential impact of hate speech on individuals and communities. The proposed legislation will undoubtedly impact workplace conduct, demanding greater responsibility from leaders, managers, and employees. By embracing the principles of diversity, inclusion, and respect, organizations can create harmonious work environments that reflect South Africa’s commitment to equality and human rights.

The probationary period is a vital tool for employers to assess an employee’s suitability for a particular role. Under the Labour Relations Act, Schedule 8, employers have the opportunity to utilise probationary provisions to evaluate an employee’s performance and determine their ability to fulfil the requirements of the job. However, it is crucial for employers to ensure that probationary periods are reasonable in duration and that employees are given a fair opportunity to respond before any dismissal decisions are made. In this article, we will explore key considerations and best practices for employers to effectively utilise the probationary provision in the Labour Relations Act. Establishing a Reasonable Probationary Period: The first step in utilizing the probationary provision is to establish a reasonable probationary period. While the Act does not provide a specific duration for probation, it is essential to consider the complexity of the role and the time required to adequately assess an employee’s competence. A reasonable probationary period should be clearly communicated to the employee in their employment contract or offer letter, outlining expectations, evaluation criteria, and any specific milestones or goals. Defining Clear Performance Expectations: To ensure a fair assessment, employers must establish clear performance expectations and criteria for the probationary period. This includes providing new employees with a detailed job description, outlining the essential duties, responsibilities, and performance standards. By setting clear expectations from the outset, employers can provide a framework for evaluation and give employees a fair opportunity to demonstrate their abilities. Regular Feedback and Performance Evaluation: During the probationary period, regular feedback and performance evaluations are crucial for both the employer and the employee. Employers should schedule periodic meetings to discuss the employee’s progress, address any concerns, and provide constructive feedback. These evaluations should be based on the established performance expectations and criteria, allowing the employee to understand their strengths and areas for improvement. Training, Support, and Development Opportunities: Employers should provide appropriate training, support, and development opportunities to help employees succeed during the probationary period. This may include orientation programs, mentoring, on-the-job training, or access to further professional development resources. By investing in an employee’s growth and development, employers can enhance their chances of success and create a positive work environment conducive to learning and improvement. Documentation and Communication: Throughout the probationary period, it is vital for employers to maintain accurate documentation of the employee’s performance, including any performance-related concerns, discussions, and improvement plans. Clear and open communication is essential, as employees need to be aware of any areas requiring improvement and have a fair opportunity to address them. Employers should provide timely and constructive feedback, clearly outlining any performance issues and offering guidance on how to rectify them. Opportunity to Respond and Fair Dismissal Procedures: If, after a reasonable probationary period, an employer determines that an employee is not meeting the required standards, the employee must be given an opportunity to respond before any dismissal decision is made. Employers should conduct a fair and unbiased hearing, allowing the employee to present their case, explain any mitigating factors, or provide additional information. This ensures procedural fairness and gives the employee a chance to address any concerns raised. The probationary provision in the Labour Relations Act provides employers with a valuable tool to assess an employee’s suitability for a job. Herewith some case law for reference of key legal pronciples. SABC vs McKenzie (2010): In this case, the South African Broadcasting Corporation (SABC) dismissed an employee during her probationary period without providing her an opportunity to respond. The court ruled that the employer’s failure to afford the employee a hearing before dismissal contravened the principles of procedural fairness. The case emphasized that employers must allow employees to present their side of the story and respond to any allegations or concerns raised during the probationary period. University of the Witwatersrand vs Raselekoane (2013): In this case, the court addressed the issue of a reasonable probationary period. The employee was dismissed after serving a probationary period of one week due to alleged poor performance. The court held that such a short probationary period was unreasonable and did not provide the employee with a fair opportunity to demonstrate her capabilities. The case highlighted that employers must establish a reasonable probationary period that allows employees sufficient time to prove their suitability for the position. NUMSA obo Khumalo v. Minister of Defence (2017): This case dealt with the employer’s duty to provide employees with clear performance expectations during the probationary period. The court emphasized that employers must establish and communicate clear criteria and standards against which an employee’s performance will be evaluated. The absence of well-defined performance expectations was deemed unfair to the employee, as they were not given a fair opportunity to meet the employer’s requirements. Mafadi Security Services (Pty) Ltd. v. Satawu obo Lephoto (2019): In this case, an employee was dismissed during the probationary period without any prior warnings or opportunity to respond. The court held that the employee’s dismissal was procedurally unfair, as the employer failed to follow fair dismissal procedures. The case highlighted the importance of providing employees with fair and reasonable opportunities to address any performance concerns or allegations before making a dismissal decision.

In South Africa, stringent regulations govern smoking in workplaces to protect the health and well-being of employees. It is crucial for employers and employees alike to be aware of these regulations and ensure compliance. In this article, we will provide a comprehensive guide to smoking regulations in South African workplaces, outlining the key requirements and responsibilities for creating a smoke-free environment. The Tobacco Products Control Act (1993): The Tobacco Products Control Act serves as the primary legislation governing smoking in South Africa. It sets out various provisions and regulations that employers must adhere to in order to maintain a smoke-free workplace. These regulations apply to all workplaces, including indoor and outdoor areas. Smoking in Enclosed Spaces: The Act strictly prohibits smoking in enclosed spaces within the workplace. Enclosed spaces refer to any area that is substantially enclosed by walls, windows, or a roof. This includes offices, meeting rooms, corridors, restrooms, and other confined areas. Employers must ensure that these spaces are completely smoke-free and establish designated outdoor smoking areas, if permitted. Designated Smoking Areas: If employers choose to provide designated smoking areas, certain conditions must be met. These areas must be located in well-ventilated outdoor spaces, away from entrances, exits, and areas where non-smokers frequent. Signage indicating smoking areas should be clear and prominently displayed. It is important to note that some workplaces, such as healthcare facilities and childcare centres, may be completely smoke-free with no provision for designated smoking areas. Workplace Policies: Employers should develop and implement clear smoking policies that outline the rules and expectations regarding smoking in the workplace. These policies should be communicated to all employees, contractors, and visitors. Policies should include information on the prohibition of smoking in enclosed spaces, the location and rules for designated smoking areas (if applicable), and the consequences for non-compliance. Awareness and Education: Promoting awareness and educating employees about the hazards of smoking and their rights within the workplace is crucial. Employers should provide information on the dangers of smoking, the benefits of a smoke-free environment, and available support for employees who wish to quit smoking. This can be done through training sessions, awareness campaigns, and the provision of educational materials. Enforcement and Consequences: Employers have a responsibility to enforce smoking regulations and take appropriate action against individuals who fail to comply. This may include verbal warnings, written warnings, or disciplinary measures in line with company policies. Consistent enforcement is essential to maintain a smoke-free workplace and protect the rights of non-smoking employees. Creating a smoke-free workplace in South Africa is not only a legal requirement but also a necessary step towards ensuring the health and well-being of employees. By understanding and complying with smoking regulations, employers can establish an environment that promotes a healthier workforce and reduces the risks associated with smoking. It is vital for employers to develop clear smoking policies, communicate them effectively, and enforce them consistently to promote a culture of compliance and foster a healthier workplace for all. Examples of relevant South African case law that highlight the importance of complying with smoking regulations in the workplace: National Bargaining Council for the Road Freight and Logistics Industry vs SA Transport and Allied Workers Union (2013): In this case, the court ruled in favour of the employer, affirming the right to enforce a smoke-free workplace policy. The court held that the employer had the authority to prohibit smoking in all company vehicles and offices, as well as in designated outdoor areas. The case emphasized the employer’s duty to protect the health and safety of employees and highlighted the importance of clear and enforceable smoking policies. Harmony Gold Mining Co. Ltd vs Association of Mineworkers and Construction Union (2017): This case dealt with the issue of smoking in enclosed spaces within the mining industry. The court held that the employer had a duty to maintain a smoke-free workplace and that smoking in enclosed spaces posed a health risk to employees. The ruling reinforced the prohibition of smoking in enclosed areas and underscored the obligation of employers to provide a safe and healthy working environment. Mankayi vs AngloGold Ashanti Ltd (2011): Although not directly related to workplace smoking, this case emphasized the importance of protecting employees from harmful substances, including second-hand smoke. The court held that the employer breached its duty of care by failing to protect employees from excessive exposure to dust and other harmful substances, leading to occupational lung disease. This case highlighted the broader duty of employers to safeguard employees’ health and well-being in the workplace.

It is common knowledge that approximately 27 000 designated employers submit their EEA 2’s every year, covering the interests of more than 6 000 000 employees. Global Business Solutions is often called upon to conduct sector-specific research and benchmarking for its clients in order to better inform EE strategy and planning. The matrix below depicts the changes in the number of employees per occupational level over the past 5 years (column #1 is 2022/23 and column #2 is 2017/18) – It is evident that the number of overall employees has decreased. Top and senior management have decreased by 39% and 32% respectively and unskilled by 26%. This trend is likely attributable to the management “recession” and technological changes which have resulted in the ability to operate without a large amount of senior managers as well as unskilled employees as repetitive tasks can be automated and data allows for edge-centric decision-making. Flatter organisational structures as well as we increases in outsourcing, sub-contracting and mechanisation are also driving these trends. The statistics SA graph below reflects how large (mostly, designated employers) organisations have a much lower ratio of employment to income as they have access to resources that optimise workforce productivity. It is likely that this trend will increase going forward as we approach the 5IR. Employers need to train for employment security and future skills if they are to assist in addressing unemployment, poverty and inequality. The Future Skills Needs of the W&R Sector set out below provides great insight into the nature and extent of what the core competency requirements are.

A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in subsection (1), is unfair discrimination. (s6(4) of EE Act) The above provision is subject to consultation under s16 of the EE Act in that the analysis of policies, procedures and practices includes “remuneration” as well as “terms and conditions of employment”. Furthermore, s27 of the EE Act requires that reasonable progress is made to eliminate disproportionate income differentials that are identified. How then can this be done, unless there is reasonable disclosure of remuneration trends based on race, gender and disability in the designated employer’s organisation? The first hint is in the EE Act that states that the provisions of s16 of the LRA apply in context – An employer is not required to disclose information— (a) that is legally privileged; (b) that the employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of any court; (c) that is confidential and, if disclosed, may cause substantial harm to an employee or the employer; or (d) that is private personal information relating to an employee, unless that employee consents to the disclosure of that information . The question is whether and to what extent remuneration is confidential and if disclosed could cause substantial harm to either party as well as what POPI would have to say about this. From a POPI viewpoint it could be argued that one of the legal principles of processing personal information (limitation) allows for the processing of personal information if it is a requirement to comply with law. The second legal provision applicable to this topic is that contained in the BCEA in s78 (refer to point (b) in particular) – Every employee has the right to— (a) make a complaint to a trade union representative, a trade union official or a labour inspector concerning any alleged failure or refusal by an employer to comply with this Act or the National Minimum Wage Act, 2018; (b) discuss his or her conditions of employment with his or her fellow employees, his or her employer or any other person; (c) refuse to comply with an instruction that is contrary to this Act, the National Minimum Wage Act, 2018, or any sectoral determination; (d) refuse to agree to any term or condition of employment that is contrary to this Act, the National Minimum Wage Act, 2018, or any sectoral determination; (e) inspect any record kept in terms of this Act or the National Minimum Wage Act, 2018, that relates to the employment of that employee; (f) participate in proceedings in terms of this Act; (g) request a trade union representative or a labour inspector to inspect any record kept in terms of this Act and that relates to the employment of that employee. It could well be argued by parties to the employment relationship that disclosure should be balanced and clear enough to provide details on race, gender and disability trends as well as to the nature and extent of the imbalances so that the committee members can consult on barriers, AA measures and steps to take in making progress in eliminating the unjustifiable differentials in income over a reasonable time period.

As of 1 July 2021, the responsibility for the Promotion of Access to Information Act (PAIA) has transferred from the Human Rights Commission to the Information Regulator. This means that both POPI and PAIA reside with the Information Regulator. On 29 July 2021, the Minister of Justice and Correctional Services signed the revised PAIA regulations into law. Where POPIA obliges responsible parties to protect the personal information of data subjects, the PAIA statute and regulations create a framework within which third parties (who include but are not limited to data subjects) can request access to records held by the organisation in order to pursue particular legal rights. The PAIA Regulations require Information Officers to ensure that the PAIA Guide, which explains how information requesters can go about their requests, is available for free in at least two official languages at the registered head office. There is a form that requesters of information can use to capture and submit their requests and the Information Officer is obliged to assist with this process. Once the Information Officer has considered the request, the outcome of the request must be communicated to the requester. In respect of Private Bodies, there is a schedule of fees that can be charged to requesters in respect of photocopies, flash drives, CDs, transcription of visual images, and the like. It is highly advised that organisations ensure that, in addition to the above, the PAIA Manual, as well as the PAIA guide, are posted on the website of the organisation as well. We recommend you do now the following: Use the new PAIA s51 manual template and populate it. We have included some comments as well to assist. This must replace your current s51 manual and please ensure you complete it in detail. Also, note that the fee structures have changed. Remember that you need to keep a hard copy of the s51 PAIA manual at your Head Office as well as the s10 PAIA Guide in two official languages (which we are still waiting for the Information Regulator to review and publish – you will get these for free from the Information Regulator when they have reviewed it) and you need to have the updated s51 PAIA manual and the PAIA guide on your website. All the supporting forms are on the Information Regulator website.

To date the EE statistics over the past 21 years reflect that there has been transformation, but not at a rate that would be justified. The reason for this is that the key ingredients of success in this regard are – transitioning through change (i.e. behaviour drivers); reasonable and achievable targets; liability management. The diagram below depicts the interplay between these three aspects and designated employers need a framework and model within which to ensure that they are adequately addressed. In addition, there is a requirement to be proactive in the sense that policies, procedures, awareness, training, risk assessments and targets are set, as well as responsive to the extent that when unfair discrimination or a deviation from the EE plan arises without justification, the employer takes immediate steps to remedy the situation. A zero-tolerance approach to any form of harassment is also mandatory. If once considers the facts, only 8% of designated employers identify organisational culture as a barrier to transformation, there is still a significant race and gender deficit in respect of the EAP and there is a 94% non-compliance rate across designated employers that have been subject to DG reviews. Join us on the 4-5 September for our Employment Equity workshop.

In the case of Percy v Two Rivers Platinum Mine and Others (JR1777/19) [2023] ZALCJHB 31 (6 March 2023) the employee was suspended after which he was charged with dishonesty. The employee had utilised company and contractor employees and facilities at the salvage yard for repairs and renovations to his private truck. He used the profile created for the “vendor bidding process” to purchase items instead of using his own profile. The employee was found guilty of the two charges and dismissed. The Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) found the employee’s dismissal both procedurally and substantively fair. The matter was referred to the Labour Court (LC) in an application to review and set aside the arbitration award issued by the CCMA. The LC found that the Commissioner understood the evidence of the witnesses and found there to be discrepancies between the employee’s witnesses. Regarding the fictitious profile created by the employee, it was testified that the employee was tasked to use the fictitious profile to ensure that collusion did not take place. The intention was not for the employee to use this account for personal purchases. The employee evidently knew the purpose of the creation of the account, however, he elected to utilise the account for purposes other than its intended purpose. As head of the salvage yard, the employee inherently had information that the other bidders did not have. The decision to purchase items at an auction with the fictitious profile was clearly to the employee’s advantage. The CCMA found that the grounds on which the employee challenged the procedural fairness of the disciplinary hearing held no merit. The LC agreed with the Commissioner. It held that the manner in which the employee conducted himself during his disciplinary hearing and arbitration was not compatible with that of a person who is remorseful. For instance, there were discrepancies in the evidence of the employee’s witnesses, and his own evidence indicated that he elected to deny any wrongdoing and blamed the subordinates. The employee took the posture of an innocent bystander. The evidence did not support this posture. In the circumstances of this case, it would have been both unfair and unreasonable to expect the employer to reinstate the employee. Dishonesty in the employment context is unacceptable. Dismissal is generally justified in all cases of serious dishonesty, not merely those in which employees enrich themselves materially at the expense of their employer. The LC found that the employee’s conduct was grossly dishonest, and dismissal was, therefore, an appropriate sanction. The LC found that the ruling of the CCMA was reasonable. The employee’s review application was dismissed and there was no order as to costs. Reach out to johnny@globalbusiness.co.za for all your labour law/relations matters.

In the case of South African National Blood Service v NEHAWU obo Mathobisa and Others (JR 654/2021) [2023] ZALCJHB 58 the employee was employed as an inventory technician. She was dismissed on 11 August 2020 after a disciplinary hearing, when she was found to have committed an act of gross negligence. The employee stacked a lab crate in an area designated for other purposes, which caused the fridge to switch off resulting in losses suffered by the employer. The arbitrator found that the dismissal was substantively unfair because while the employee had caused the switch to trip and the fridge to lose temperature, the employer should have treated the employee the same as her colleagues. These people were notified by SMS that the temperature of the fridge was out of range and neglected to address the situation. These colleagues were given a final written warning. The arbitrator considered the employee’s dismissal to be unfair because: The employer’s disciplinary code and procedure provided a penalty of a final written warning for an act of gross negligence; The dismissal was inconsistent with the lesser sanction of final written warning issued to other employees for the same or similar conduct; The evidence indicated that the employee had turned remorseful to the extent that the employer relied on a failure to show remorse as a basis to depart from the guideline offered by the disciplinary case and as a differentiating factor between the employee and her comparators. The matter was referred to the Labour Court (LC). The Court found that clause 2 of the disciplinary code as well as clause 8.8, stating that the penalties referred to are ‘ intended to serve as guidelines to management in implementing discipline’ . There was no basis therefore for the arbitrator to conclude that the penalty of a final written warning was a mandatory or the only appropriate penalty in circumstances where the employee had been found guilty of gross misconduct. The charges brought against the employee were different from those brought against the employees she named as comparators. The employee had been charged with gross negligence, whereas her named comparators had been charged with dereliction of duty. For these reasons, there was no inconsistency on the part of the employer. The employee’s misconduct was serious and had grave financial and other consequences for the employer. The LC found the employee’s dismissal to be substantively fair and her referral was dismissed. Contact Johnny@globalbusiness.co.za with regards to any labour relations or law matters.

The recent Constitutional Court finding that the AARTO Act is aligned with the Constitution adds another “to-do” item to the list of all organisations. The impact of AARTO is broad and deep, and as is the case with employment equity, organisations need to start identifying how to implement, monitor and evaluate AARTO. The potential impact of AARTO on business continuity, labour relations processes, and liabilities, as well as risk management, is significant. AARTO will require a range of interventions in order to ensure an integrated, comprehensive, and legally compliant approach. These will include – Conducting an impact assessment of the stakeholders, documents, capacitation requirements, processes, and systems required; Developing a comprehensive AARTO policy; Drafting employment contract clauses and annexures pertaining to rights, obligations, and acknowledgment of debt; Revisiting disciplinary codes and grievance procedures; Reviewing job profiles for positions where having an active driving license is material; Developing training material; Designing logbooks and related tracking systems; Appointing proxies; Appropriating costs and expenses associated with fines and penalties, as well as the costs of potential rehabilitation and re-application for a license; Remunerative arrangements while an employee may be suspended from driving; And much more. Specifically, organisations could adopt the following approach – Step 1: Create Awareness on AARTO and collaborate with key stakeholders Develop a change management process and assign responsible persons Inform employees of new legislation and its impact on the business Advise that changes in policies, contracts, and procedures are needed and why. Step 2: Amend policies and procedures Company vehicle policy; Disciplinary code; Implement a procedure to monitor infringements by staff (eNaTIS) and reporting of infringements. Step 3: Amend Contracts and draft addendums Consent to eNaTIS Disclosure of Infringements Liability for fine (AOD) No work no pay / potential incapacity – license suspended Step 4: Consult with Stakeholders on proposed amendments Workplace forums. Trade unions. Allow time for feedback. Not asking for permission – only consultation. Step 5: Address concerns and representations and provide feedback (context is always important) Step 6: Implement changes and train Set an effective date. Train all staff on changes. Obtain signatures on amended documents/policies. Develop memos and SOPs. If you need assistance in respect of AARTO, please email Justine Weddell at justine@kirchmannsinc.co.za or email cynthia@globalbusiness.co.za