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Nicolene Erasmus and André Claassen

 

The need for employers to be able to trust their employees is crucial. For example, employers need to know that their employees and prospective employees are honest as regards the job qualifications they put forward, the work that they do and the clients that they serve. The employer needs to be sure that its employees do not misuse the knowledge they have of the workings of their organisation for their own personal gain.

 

In South Africa, where there is heavy competition for jobs it is not unusual for job applicants to deceive prospective employers in order to improve their chances of being offered a job. This type of deception includes: 

 

  • Claiming qualifications that do not exist
  • Falsification of CVs and academic certificates
  • Provision of false reference letters
  • Exaggeration of skills and experience
  • Lying about reasons for termination of previous jobs
  • Denying that the employee is pregnant
  • Lying about the employee’s age
  • Provision of incorrect referees. That is, replacing the names of previous superiors with names of friends or colleagues who then give glowing references
  • Withholding of information such as criminal convictions and disciplinary action

 

The key questions are: 

 

  • “What information does the law require the job applicant to provide?” and
  • “What legal recourse is there for the employer who subsequently finds that it has employed someone who deceived it prior to employment?” 

 

It is generally accepted that the employer has a right to full and accurate information that is genuinely pertinent to the decision to employ a job applicant.

 

While this is the general rule, many exceptions exist, particularly where the information in question relates to the employee’s personal circumstances. For example, section 6 of the Employment Equity Act (EEA) prohibits discrimination against job applicants on a number of arbitrary grounds including race, gender, pregnancy, age and numerous others. Logically therefore, it would normally be unacceptable to fire an employee who had withheld information related to these prohibited arbitrary criteria. For example, it would, in most cases, be wrong to fire an employee for having failed to inform the employer, during the job application stage, that she was pregnant. Although the employee may have proved to have been dishonest about this at her interview, job applicants are not required to divulge such information.

 

However, where the deception of the employee relates to the employee’s ability to do the job and thereby satisfy the employer’s operational requirements the employer is on firmer ground should it wish to bring disciplinary action against the employee. For example, in the case of Evans vs. Protech (2002 7 BALR 704) the employee had, prior to employment, informed the employer that she had previously worked as a qualified hairdresser and that a certain person was to be contacted for a reference. The employee was then employed. Thereafter the employer discovered that the employee had never worked with the alleged referee and that the employee had not been a qualified hairdresser. The employer therefore dismissed the employee. The CCMA found that the dismissal was procedurally unfair because no disciplinary hearing was held, but substantively fair because the employee had not been justified in lying about her qualifications during the job application stage.

 

However, in the case of NUMSA obo Engelbrecht vs. Delta Motor Corporation (1998 5 BALR 573) the CCMA found the dismissal of Engelbrecht to be unfair despite the fact that he had failed to inform the employer, at the job application stage, of a previous act of dishonesty. The arbitrator reinstated the employee.

 

It is not only job applications that can result in misrepresentation. In the case of PSA obo Mojake vs. SARS (2005, 12 BALR 1308) the employee worked as an auditor for SARS. She was dismissed for having written to SARS a letter purporting to come from a consumer organisation. The letter requested SARS to cancel garnishee orders issued against Mojake. The CCMA agreed that such misrepresentation was deserving of dismissal but nevertheless ordered the employer to pay the employee compensation because it had breached its own disciplinary procedure in the process if dismissing Mojake.

 

In Grobler ./ Anglo Platinum Frank Shaft [2008] 2 BALR 147 (CCMA), the applicant applied for employment, his application was successful and he was appointed. The applicant was previously employed by Impala Platinum Rustenburg. Whilst in that employment, the applicant was charged with gross negligence in the performance of his duties, resulting in his dismissal from Impala Platinum. The applicant, after his dismissal, started and managed his own business for approximately 12 months.  The applicant later approached an employee of Anglo Platinum regarding the possibilities of any employment opportunities there.  The employee who was approached asked the applicant for a copy of his curriculum vitae in order to give it to the mine overseer. The applicant did mention to this employee that he spoke to, that he was previously dismissed from Impala Platinum. The employee apparently passed this information to the mine overseer. Following an interview, the applicant was informed that his interview and subsequent application for employment was successful. After signing an offer of employment for the position of shift supervisor, the applicant continued to attend the induction course, and after successfully completing that course he returned to his specific shaft. During this time and whilst attending to administration requirements specifically in relation to the applicant's employment, it was discovered that the applicant was previously dismissed from Impala Platinum. The applicant was informed that his employment would not be processed and that he must report to the human resources Department. The applicant was informed that his appointment was withdrawn due to the fact that he failed to disclose important information in respect of his disciplinary record with the Impala mine. The applicant then referred a dispute of unfair dismissal to the CCMA. A witness for the respondent testified that at the interview, he did ask the applicant the reason why he had left his previous employment, and the applicant had answered that he was looking for better opportunities. Under cross-examination, witnesses for the respondent confirmed that the applicant had the opportunity to disclose the fact that he was dismissed from Impala, but failed to do so. For various reasons, it was held that there were procedural defects regarding the procedure followed by the employer prior to dismissing the applicant. In other words, the arbitrator ruled that the dismissal was procedurally unfair but substantively fair. The substantive reason for the dismissal was a fair reason - namely the reason for the dismissal was because the applicant had failed to disclose vitally important information regarding the termination of his employment with his previous employer.

 

Despite the fact that the arbitrator found that the dismissal was procedurally unfair, he did not award any compensation to the applicant for procedural unfairness. This was because the procedural defects brought about by the employer, when seen against the fact that “the applicant himself acted unjustly and incorrectly by failing to disclose important and relevant information that would, in all probability, have impacted negatively on the decision of the respondent to appoint the applicant,” is sufficient to render any procedural defect to be not unfair per se. In other words, said the arbitrator, against this background the applicant is the architect of his own fate, and therefore is not entitled to any compensation.

 

This matter must have consumed a large amount of the employer's time and resources, considering the interview process, the administrator of procedures to be adhered to in employing somebody, then the dismissal, CCMA conciliation, CCMA arbitration and probably a bit more.

 

The decisions in these cases mean that employers must: 

 

  • ask applicants why they left from the previous company they worked for and if any disciplinary action was taken against them. Also ask about criminal records and other factors that are inherent to the position. Matters become more complicated when the employer failed to ask these questions and later attempts to dismiss employees for misrepresentation or operational reasons.
  • check all information that job applicants give them
  • put in place systems for preventing employees from misusing their knowledge of the organisation for personal gain
  • give employees disciplinary hearings that are procedurally and substantively fair before acting against them for misrepresentation
  • employers must, before holding such hearings, consult with a reputable labour law expert as to whether the deceptive behaviour in each individual case merits discipline and dismissal. 

 

Verification of job applicants’ personal information

 

The EEA applies to employees, employers and applicants for employment. This Act prohibits unfair discrimination on listed grounds such as sexual orientation, religion and disabilities.

 

The Act further states that it is not unfair to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job, meaning that we may ask applicants to disclose information in order to determine their suitability for a specific position. It is also evident that it is not prohibited to ask applicants about their past criminal records since the Act does not mention criminal records as a form of discrimination.

 

Employers are however advised to tread carefully when it comes to criminal records. It would be unfair to take a past criminal record for a minor offense into consideration when there is no such inherent requirement associated with the position. In such cases the applicant may have a case of unfair discrimination.

Medical testing of applicants are prohibited unless legislation permits or requires such testing or it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirement of a job.

 

Psychometric testing and other similar assessments are prohibited unless the test or assessment has been scientifically shown to be valid and reliable, can be applied fairly to the employees and is not biased against any employee or group.

 

For more information contact

 

 

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 .

 

 

 

 

 

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