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Ivan Israelstam

             
Section 60 of the Employment Equity Act (EEA) EEA, in effect, provides that, if the employer fails to take the steps necessary to deal with unfair discrimination or sexual harassment, the employer himself can be charged with unfair discrimination on the grounds of sexual harassment. This suggests that, wherever an employer becomes aware of sexual harassment it should take the disciplinary steps without unnecessary delay. For example, in the case of Christian v Colliers Properties (2005, 5 BLLR 479) a Ms Christian was appointed as a typist by the employer.
       
Two days after starting work, her boss asked her if she had a boyfriend and invited her to have dinner with him. He also asked her to sit on his lap and kissed her on the neck. When she later objected to the manager's conduct he asked her whether she was "in or out". When she said that she was "not in" he asked her why he should then allow her employment to continue. She was dismissed with two days pay and referred a sexual harassment dispute.
        
In a default judgment the court decided that:

  • The employee had been dismissed for refusing her superior's advances.
  • This constituted an automatically unfair dismissal based on sexual discrimination
  • Newly appointed employees are as deserving of protection from sexual harassment as are their longer serving colleagues

           

The employer had to pay the employee 24 months' remuneration in compensation as well as additional damages and interest on the amounts to be paid as well as the employee's legal costs. The above finding might lead employers to believe that, in order to protect themselves, they need to dismiss any employee found guilty of sexual harassment. However, this is not always so. For example, in the case of SABC Ltd v Grogan (2006, 2 BLLR 207) a regional sales manager was dismissed for (among other things) sexual harassment after he had allegedly kissed a junior female colleague several times, given her love literature and had physical contact with her in his car.
           
An arbitrator later found that, while he was guilty of sexual harassment the level of seriousness of his conduct did not merit dismissal. This was largely because the alleged victim had not seemed to mind his advances very much and had said she did not think he should be dismissed. The arbitrator therefore ordered the employer to reinstate the employee. The employer took this decision on review to Labour Court but lost again as the court pronounced the arbitrator's finding to have been properly thought out and justified.
          
The above case findings show that:
                
1. Employers cannot ignore sexual harassment of their employees and must act swiftly.
2.However, this does not mean that dismissal is appropriate in every case.
3. Employers need to use reputable labour law experts to assist with:

  • Deciding what the appropriate action should be in each individual case of sexual harassment.
  • Designing a comprehensive sexual harassment policy.
  • Ensuring that every owner, manager and employee knows and understands the severe consequences of committing such acts.
  • Communicating to all concerned that such misconduct will result in severe penalties including possible dismissal.
  • Ensuring that all employees feel entirely free to report sexual harassment.
  • Training all employees in the above listed issues as well as in what constitutes sexual harassment, how to deal with it, where to report it and the company's supportive policy towards sexual harassment victims.

                            

Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 011 888 7944 or  

Our appreciation to Ivan and The Star newspaper for permission to publish this article… 

 

POPI and consent - don’t get caught in your own net

By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr

 

2020 has given rise to many challenges for employers. The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI.

 

POPI distinguishes between the collection, storage and processing of personal information and special person information. Special personal information includes e.g. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees.

 

It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance.

 

Section 1 of POPI defines consent as “any voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal information”. Written consent is not expressly required. However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. In the circumstances it is advisable for employees’ written consent to be secured.

 

The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed.

 

The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR.

 

In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. The employees must be able to understand in clear language what they are consenting and the extent of the consent. Where necessary provisions should also be made specifically for the processing of special personal information.

 

Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee.

 

Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI.

 

Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. This would cover instances where e.g. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act.

 

An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. While the term “legitimate interest” is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?

 

A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions.

 

So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. In the absence thereof, the employer will need to prepare and secure a further consent from the employee.

 

For more information, please contact Gillian Lumb at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

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