Home

Harassment in the Workplace, Restraining Orders and the Protection from Harassment Act

Mark Meyerowitz and Shane Johnson, Cliffe Dekker Hofmeyr

Employers have a duty to create and maintain a safe working environment for their employees. This includes the duty not to in any way facilitate harassment (including sexual harassment), or allow harassment to take place at work. If an employer fails to take appropriate action against an employee who harasses another employee, that employer may become liable for a harassment lawsuit in terms of the Employment Equity Act, No 55 of 1998 (EEA).

New legislation has recently supplemented this prohibition on harassment. The Protection from Harassment Act, No 17 of 2011 (PHA) came into force on 27 April 2013. The PHA applies to everyone who commits acts of harassment and is designed to protect victims of 'stalkers' and other individuals who commit acts of harassment. This includes harassment in the workplace.

The PHA defines 'non-sexual harassment' as conduct of a non-sexual nature where the perpetrator knows, or ought to have known, that it causes physical or psychological harm, or inspires a reasonable belief that harm may be caused.

PHA further defines 'sexual harassment' as unwelcome sexual attention from a person who knows, or ought reasonably to know, that the attention is unwelcome. It also broadens the definition of harassment to include electronic communications, such as emails, which can be used as a mechanism to harass persons.

In terms of the PHA, victims of harassment are entitled to have an interim protection order issued against the harasser. A protection order is essentially what the US judicial system refers to as a 'restraining order'. Together with the protection order, a warrant of arrest will be issued against the harasser which will remain in force until such time as the protection order expires or is set aside.

Employers will now have to manage situations where the victim and the harasser may be in the same workplace. If a court grants a protection order against the harasser, the employer will have to take steps to ensure that the protection order is upheld. This may include instituting disciplinary action against the harasser, or transferring the harasser to another department.

In Grobler v Naspers Bpk en n' ander [2004] All SA 160 (CC), a manager was found guilty of sexually harassing an employee. The court found the employer to be vicariously liable for the conduct of the manager because it had failed to take appropriate action to prevent the harassment. The employer was liable for the resultant damages.

It would appear that the PHA enhances the Grobler decision and may justify further instances where employers are held liable for harassment through vicarious liability. Employers are therefore well advised to consider this new piece of legislation when applying their harassment policies, and when hearing disputes between employees

For more information please contact Mark Meyerowitz, Associate, and Shane Johnson, Candidate Attorney, Employment Practice, Cliffe Dekker Hofmeyr at (011) 562 1124 or via e mail at or

 

The Protection of Personal Information


By Jan du Toit, Senior Consultant, SA Labour Guide

 

After more than seven years in the making, President Ramaphosa announced last year an effective date of 1 July 2020 for the Protection of Personal Information Act (POPI), Act 4 of 2013. “Responsible Parties” only have approximately 5 months left until 30 June 2021 to become compliant in full.

 

The duration of a typical POPI compliance project will differ from one business to another depending on the nature and size of the business, as well as the Personal Information processed by a Responsible Party. Business owners are therefore advised to, without delay, embark on a compliance project to meet the deadline.

 

Even though the Protection of Personal Information Act is welcomed by most, it has been long overdue and will require business owners (“Responsible Parties” in terms of the Act) to process Personal Information according to 8 processing conditions as set out in the Act.

 

The purpose of the Protection of Personal Information Act is in essence found in the title of the Act; to protect the Personal Information of “Data Subjects”. It gives effect to ones right to privacy as enshrined in the Constitution but also provides balance in terms of the right to privacy weighed up against the right to access to information.

 

The Act regulates the manner in which Personal Information must be processed and provides protection and recourse to those whose rights are infringed. Further to this, the Act makes provision for the establishment of an Information Regulator. Advocate, Pansy Tlakula has already been appointed as the Information Regulator a couple of years ago and has done a great deal of work in establishing her office.

 

Before I get into more detail about the eight processing conditions, it is important to note that the Act is “definitions driven”. It is therefore of utmost importance to first highlight some of the definitions found in the Act for readers to better understand the eight processing conditions.

 

The first definition is that of “Personal Information”. Personal Information is widely defined in the Act and includes, but is not limited to, information relating to an identifiable living natural person or a juristic person (“Data Subjects”), such as:

  • Race, gender, sex, pregnancy, marital status, nationality, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, believe, culture, language, birth

  • History - education, medical, financial, criminal, employment

  • Identifiers – number, symbols, e-mail address, physical address, telephone numbers, location, online ID or other assignment to a person such as a unique identifier (in example a student or patient number)

  • Biometric information – physical or psychological behavioural characterization, blood type, fingerprints, DNA analysis, retinal scanning, voice recognition

  • Personal opinion views or preferences

  • Correspondence implicitly or explicitly of a private and confidential nature

  • Views or opinions of another individual\

  • The name of the person with other information or the name alone

 

The second definition of importance is that of “processing”. The processing of Personal Information includes but is not limited to any operation/activity or any set of operations, whether automated or not, concerning Personal Information. It includes:

  • Collection / receipt / recording / organizing / collation / storage / updating / modification / retrieval / alteration of Personal Information

  • Dissemination by means of transmission distribution or making available to others.

  • Merging / linking / restricting / degradation / erasure / destruction of Personal Information.

 

A Responsible Party can either be a public body, private body or any other person or persons, domiciled in South Africa and that determines the purpose and means for processing of Personal Information.

 

Throughout the entire lifecycle of Personal Information in any business, eight processing conditions must be adhered to. The eight processing conditions are summarized below:

 

Condition 1 – Accountability. The Responsible Party must always ensure that the conditions set out in Chapter 3 of the Act and all the associated measures are complied with.

 

Condition 2 – Personal Information must be collected and processed lawfully in a reasonable manner that does not infringe the privacy of a Data Subject. The Personal Information may only be processed if it is adequate, relevant, and not excessive.
Personal Information may only be processed if the Data Subject consented thereto. Alternatively, where it is necessary to do so for the conclusion or performance of a contract, an obligation in terms of law, to protect the legitimate interest of the Data Subject, or to pursue a legitimate interest of the Responsible Party.

 

A further requirement is that the Personal Information must be collected directly from the Data Subject.

 

Condition 3 requires that Personal Information must be collected for a specific explicitly defined and lawful purpose related to a function or activity of the Responsible Party. Such Personal Information may not be retained any longer than necessary for achieving the purposes for which the information was collected and/or subsequently processed.

 

Condition 4 prohibits the further processing of Personal Information unless such processing is compatible with the initial purpose of collecting the information.

 

Condition 5 requires that Responsible Parties must take reasonable, practicable steps to ensure that Personal Information is complete, accurate, and not misleading. Such Personal Information must also be kept up to date, taking into consideration the purpose of the Personal Information.

 

The nature and purpose of the Personal Information will dictate as to how often such Personal Information must be updated.

 

Condition 6 addresses some of the rights of Data Subjects, such as the right to be informed by the Responsible Party before information is collected. The purpose of collecting and from where Personal Information will be collected must be disclosed to the Data Subject.

 

A Data Subject is entitled to the details of the Responsible Party and to be made aware of the consequences of not making Personal Information available to the Responsible Party.

 

Should it be required that Personal Information be collected and processed in terms of legislation, the Data Subject must be made aware accordingly.

 

As per Section 72 of the Act, the Data Subject must be advised if Personal Information will be transferred across the borders of South Africa. Under such circumstances the Data Subject is entitled to first be made aware of legislation in other countries that provides adequate protection of the Personal Information. In the absence of legislation, whether there are any binding corporate rules in place, alternatively a written agreement that offers adequate protection for the Data Subject, concluded between the Responsible Party and he third party.

 

Condition 7 requires that Responsible Parties must secure the integrity and confidentiality of Personal Information by taking appropriate reasonable, technical and organisational measures, to prevent loss or unlawful access of Personal Information under the control of a Responsible Party.

 

In this regard the Responsible Party is required to identify all reasonable and foreseeable internal and external risks, and to establish and maintain appropriate safeguards. Compliance with such safeguards must be regularly audited and measures updated if so required.

 

Condition 8 deals with the rights of Data Subjects and participation. In terms of condition 8, Data Subjects have the right to establish whether Personal Information is held by a Responsible Party and to have it corrected or destroyed if it is inaccurate, irrelevant, excessive, out of date, incomplete, misleading, or have been obtained unlawfully.

 

Responsible Parties are also further required to introduce Data Subject rights and participation in their PAIA (Promotion of Access to Information Act) manuals.

 

Responsible Parties are also not permitted to send direct marketing material to Data Subjects without their written consent as per from 4 four of the regulations of the Act.

 

Other important considerations in terms of the Act are that a Responsible Party may be issued with an administrative fine of up to R10 million for its non-compliance with the Act. Additionally, Data Subjects have the right to sue Responsible Parties and under specific circumstances, the Information Officer of the Responsible Party may be imprisoned.

 

Each Responsible Party must register an Information Officer (the head of the organization or a person acting in such capacity) with the Information Regulator. The Information Officer may appoint deputies to assist with ensuring compliance within the business.

 

From the above, it is evident that a POPIA compliance project is not something that should be undertaken without a solid understanding of the Act.

 

Our subscribers, a.k.a. “Responsible Parties”, are invited to attend our online POPIA presentations to better understand the Act and to ensure compliance. In-house training can also be arranged on request.

 

The author of this article is also available to assist employers with compliance projects in the form of awareness sessions, gap analysis, policy development / implementation and staff awareness.

 

For further information pertaining to training, readers are invited to visit www.labourguide.co.za or to contact Jan du Toit at .

 

 

 

 

 

Courses and Workshops

 

                   

 

Workshop Chairing Disciplinary Hearings

25 & 26 February 2021 (09:00 - 16:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

05 March 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

12 March 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

26 March 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

25 March 2021 (09:00 - 12:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

05 March 2021 (08:30 - 16:00)

Interactive Online Course

COVID-19 Workplace Compliance Health, Safety and Claims Management Course

11 & 12 March 2021 (08:30 - 13:00)

Interactive Online Course 

AARTO and the Impact on Your Business

12 March 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

09 April 2021 (09:00 - 12:00)

Interactive Online Course 

Employment Equity Committee Training

17 March 2021 (09:00 - 16:00)

Interactive Online Course

Basic Labour Relations

18 March 2021 (09:00 - 16:00) (Fully Booked)

Interactive Online Course

08 April 2021 (09:00 - 16:00)

Interactive Online Course

POPIA: Protection of Personal Information Act

19 March 2021 (09:00 - 12:00)

Interactive Online Course

Management and Leadership Skills

24, 25 & 26 March 2021 (08:30 - 16:00)

Interactive Online Course

 

 Our Clients 

 

Android App On Google Play

Android App On Google Play