fired for office gossip

ENCA interview: Can you be fired for office gossip?

Nicol Myburgh, the head of human resources company CRS Technologies, explains the intricacies of what is appropriate in the workplace. Courtesy

JOHANNESBURG – Three male colleagues were fired for commenting on their female co-workers during a company outing.

A co-worker reported the men — who had been ranking their female colleagues on a “hot list” — to the company’s HR department.

They were subsequently dismissed.

Employers have a right to a harmonious workplace

Nicol Myburgh, head of human resources company CRS Technologies, said, “employers have a right to a harmonious workplace, anything that disrupts that harmony is actionable and can actually lead to a dismissal.

“I’m not saying to the extent of a dismissal, everything is on a case-to-case basis but anything that affects the harmony at the business, that’s definitely actionable.”

Myburgh referred to the example and pointed out that the conversation between the men could have been exacerbated by the kind of comments they were making, which could be interpreted as sexual harassment.

Watch the interview:  https://www.enca.com/analysis/can-you-be-fired-office-gossip

Sexual harassment – A workplace problem not going away

Employment equity needs more than lip service

The evolving regulatory landscape in South Africa means companies must ensure they do everything possible to maintain an equal and fair working environment.

According to Nicol Myburgh, Head of the HR Business Unit at CRS Technologies, recent changes to the Employment Equity (EEA4) document for annual reporting will force companies to report on the vertical remuneration gap within their organisation, i.e. the difference in salary between a company’s highest and lowest paid earners.

“Essentially, government is trying to identify the extent of the wage gap at each company and whether a policy is in place to address it,” he says.

Another proposed change, which was recently presented to Parliament, deals with the definition of ‘designated employer’. Currently, this is defined as a company consisting of more than 50 employees, or with an annual turnover threshold for its industry. The proposed new definition will exclude the turnover threshold.

“This will certainly make it easier for SMMEs to operate in as they no longer need to report on employment equity requirements (EE),” says Myburgh. “However, failure to report will prevent them from being issued with a compliance certificate, without which they will not be able to apply for government tenders. Consequently, SMMEs may choose to voluntarily comply with the new requirements, especially if their continued success relies on doing business with the public sector.”

Target practice

Government is also considering implementing sectoral EE targets for businesses to achieve.

“Previously, companies had to comply with the country’s demographics to achieve EE, but now every sector will have its own set of targets to achieve, which will be split between top management all the way down to unskilled workers,” Myburgh explains.

“It is not yet clear how government will determine these targets, but it will have to consider the specific skills set that exists within each sector, as some sectors require a higher set of skills than others.”

Common sense

Practically speaking, EE seeks to eliminate discrimination for any reason, whether it be race, gender, sexuality, language, religion, politics, or any other arbitrary reason such as hair colour.

“Ultimately, it comes down to businesses not putting on a front but complying with EE in accordance with legislation. Failure to have the correct policies, procedures, and practices in place is a barrier to EE. Additionally, it is critically important that employees are educated on what it means to discriminate unfairly and the various grounds thereof. The financial impact of non-compliance is too significant to risk,” Myburgh concludes.

As always, CRS Technologies is available to assist clients. For more information and advice, contact us

Revised employment equity legislation could open up govt business

Revised employment equity legislation could open up govt business 

It may be the last quarter of the year, but South African employers won’t have much opportunity to sit and reflect on business over the past ten months – the Commission for Employment Equity (CEE) has confirmed the Employment Equity Amendment Bill 2018 will be tabled before Parliament before the end of October 2019.

The Employment Equity Amendment Bill, 2018 and the Draft Employment Equity Regulations, 2018 were published for public comment for 60 days from 21 September 2018 to 20 November 2018.

The legislation seeks to further establish and increase transformation in the workplace – a necessary step in the process of workplace transformation and progressive change in corporate South Africa.

Regulate sector-specific employment equity targets

As with any proposed legislation, it is vital that employers be cognisant of the changes that will come about.

Firstly, employers need to be aware that the law will empower the labour minister to regulate sector-specific employment equity targets and promulgate Section 53 of the Act to enable the issuing of Employment Equity compliance certificates as a prerequisite for accessing state contracts.

We advise all employers to review the Bill and its contents to better acquaint themselves with the finer details. As an initial guide, we have highlighted several significant changes.

Proposed changes to the Bill include a revision to the definition of “designated employer”, and a revision to the National Minimum Wage Commission.

Specify numerical targets for any sector

Moreover, Section 14 of the principal Act (Voluntary Compliance) has been deleted. This means that in terms of Section 53 (State Contracts), employers with fewer than 50 employees will no longer be able to participate in a government tender, but can be issued with a Certificate of Compliance to enable them to do business with government, provided they comply with Chapter 2 of the EE Act (Unfair Discrimination) and the National Minimum Wage Act.

A new subsection, section 15A, has been added to Chapter 3, Section 15 (Affirmative Action Measures) of the Act. Section 15A (Establishment of Sectoral Targets) has been added to specify numerical targets for any sector or part of a sector.

This means the minister may publish a notice in the Government Gazette identifying national economic sectors for the purposes of the EE Act, having regard to any relevant code contained in the Standard Industrial Classification of all Economic Activities published by Statistics South Africa.

Regulations prescribing the criteria

The minister may, by notice in the Gazette, set numerical targets for any sector or part of a sector identified. The notice issued may set different numerical targets for different occupational levels, or regions within a sector, or on the basis of any other relevant factor.

The minister may also issue regulations prescribing the criteria to be considered in determining a numerical target.

The implementation of this legislation will have far-reaching consequences for all businesses in South Africa, especially those businesses competing to attract government’s attention.

Sexual harassment – A workplace problem not going away

Sexual harassment – A workplace problem not going away

Sexual harassment in the South African workplace is more prevalent than many might care to admit, but false accusations are muddying the waters of those with legitimate claims, according to Nicol Myburgh, Head of the HR Business Unit at CRS Technologies.

“False accusations around sexual harassment are always malicious and usually motivated by a desire for attention or material gain,” he says. “The negative impact of false allegations on the accused’s life are monumental, to say the least. Not only are their careers ruined and family relationships damaged, but they also suffer extreme mental trauma.”

In 2017, well-known actor Kevin Spacey faced allegations of sexual misconduct. This resulted in a snowball effect where his role in a popular TV series was cancelled and other work opportunities all but disappeared for him. Around two years later the original accuser dropped the civil action filed against the actor and the case was dismissed. Despite Spacey’s exoneration, the impact on his life has been profound.

Falsely claiming sexual harassment is a criminal offence and the consequences of such actions should be the same as for any other charge of dishonesty in a company,” says Myburgh. “The accuser must be prosecuted to the full extent of the law and be dismissed from his place of employment.”

Understanding harassment

Despite the potential for false accusations, sexual harassment remains a very real problem that must be addressed. A report released by the Commission for Conciliation, Mediation, and Arbitration (CCMA) reveals that of the sexual discrimination referrals which came before the commission between 2015 and 2018, almost 77% of complainants were female. Additionally, 30% of women and 18% of men reported unwanted sexual advances in the workplace. A staggering 92% of sexual discrimination referrals are either settled at conciliation or are not pursued to arbitration.

Sexual harassment refers to any unwanted sexual attention,” Myburgh explains. “This can range from a lustful stare or gaze to any comment made about a person’s body or part of their body. It can also be something that happens indirectly. For example, female employees may choose not to attend a social gathering after work because of family responsibilities. The event could be considered discriminatory as it takes place after hours.”

Policy management

The Employment Equity Act and its Code of Good Practice contain information on handling sexual harassment cases in the workplace. However, a new Code of Good Practice, based on the International Labour Organisation Convention 190 on Violence and Harassment and Recommendation 206 on Lustful Gazes, is expected to be released next year.

“These best practice changes have been implemented as a result of the current climate of exposure when it comes to dealing with sexual harassment. Just think about cases involving the likes of Roger Ailes, Harvey Weinstein, Bill Cosby, and Bob Hewitt.”

Of course, there is no one-size-fits-all approach when it comes to sexual harassment, but the Code of Good Practice on Handling of Sexual Harassment Cases in the Workplace does provide a guiding light.

Its objective is to eliminate sexual harassment in the workplace and provide appropriate procedures to deal with and prevent its reoccurrence. The code encourages and promotes the development and implementation of policies and procedures that lead to the creation of workplaces that are free from sexual harassment where employers and employees respect one another’s integrity and dignity, their privacy, and the right to equality in the workplace.

The code further states that employers should develop clear procedures that deal with sexual harassment. These procedures should enable resolution of the problem in a sensitive, efficient and effective way.

“When a claim of sexual harassment is made, it is important to gather as much information about the purported incident as possible,” says Myburgh. “The company must find out from the victim what was said or done, when was it said or done, where it was said or done, who was present, and whether any evidence exists. Only then should the accused be approached and informed of the accusation.”

The accused should be permitted to view the evidence and offered an opportunity to respond. Any evidence to the contrary, as well as a denial or admission to the accusation should also be obtained.

“If the accused admits to the claim, or if there is enough evidence to prosecute, the company can either proceed with prosecution or commence with a counselling session,” Myburgh continues. “This entails informing the accused that the behaviour is inappropriate or was perceived as inappropriate. The person should be informed about the regulations pertaining to sexual harassment and that such behaviour cannot happen again. If the conduct is serious enough, the next step is a disciplinary hearing or prosecution.”

Challenging times

Having a policy is little consolation for someone who is experiencing harassment, Myburgh notes. “The biggest obstacle any organisation faces is being unaware that sexual harassment is taking place. This usually happens because the victim does not report it, not always because they are scared into submission, but because they are embarrassed.”

If the HR department is unable to deal with the situation correctly, for any reason, there are other avenues for victims to follow. “Report the incident to the CCMA or Labour Court,” Myburgh advises. “These entities could issue a compliance order.”

“Another challenge is a lack of understanding of what sexual harassment constitutes. Employees could be completely unaware that they are acting or speaking in an offensive manner. Consequently, companies should offer gender-based sensitivity training to educate their employees on how people perceive certain actions and words.”

Steps taken

Employees should not stand for any form of harassment, Myburgh adds. “The longer it is tolerated and ignored, the longer it will continue. Additionally, there must be reporting avenues for victims as well as whistle blowers so that anyone who witnesses sexual harassment is free to report it without being discriminated against.

“Employers must send a strong message that sexual harassment is not acceptable and will not be tolerated under any circumstances. Companies need to implement strong policies and procedures that advocate zero tolerance and promise immediate action,” Myburgh concludes.

As always, CRS Technologies is available to assist clients. For more information and advice, contact info@crs.co.za

Zambia’s new National Health Insurance Fund now enforced

Effective 1 Oct 2019 – Zambia’s new National Health Insurance Fund now enforced

Businesses in Zambia must take cognisance of the country’s new National Health Insurance Fund, effective 1 October 2019, which not only requires employers to register their employees, but also that both employers and employees contribute to the fund.

The fund, applicable via statutory instrument no.63 (following approval of the National Health Insurance Act 2018 in April 2018) affords specific responsibilities to employers and employees.

Specialist provider of human capital management solutions CRS Technologies believes the Zambian labour market has arrived at a critical juncture. General Manager Ian McAlister explains the significance of the development.

Southern African countries remain under pressure

“An employer must register an employee with the National Insurance Management Authority as a member. An employee means any person who has entered into or works under a contract of service, whether the contract is expressed or implied, is verbal or in writing, and whether the remuneration is calculated by time or work done or is in cash or kind. Persons employed under a contract of apprenticeship made in accordance with the Apprenticeship Act, or a casual employee cannot be registered as a member.”

Given that the economies of Southern African countries remain under pressure – as is the case with most across the continent – cost reduction, capital flow, revenue generation and job creation are all priorities, McAlister continues.

“This is relevant because the fund requires that employers pay a contribution to the scheme consisting of both the employer and employee’s contribution.”

Both employers and employees must pay 1% of their basic salaries, and the employer must pay the contributions deducted in a month on or before the 10th of the following month.

Be aware of the type of information that needs to be reported

McAlister advises companies to be aware of the type of information that needs to be reported. “This is because specifications regarding the reporting are not set out in the statutory instrument.”

Full details, including name, business references, NRC or passport numbers, employment number, marital status, number of employees and contact details must be supplied.

As always, CRS Technologies is available to assist clients. For more information and advice, contact info@crs.co.za

Legislation and compliance a critical part of HR and payroll software

Legislation and compliance a critical part of HR and payroll software

No HR and payroll solution is complete without a comprehensive legislation and compliance advisory service, states CRS Technologies General Manager Ian McAlister.

“Tax authorities are becoming more meticulous than ever before, and legislative compliance is critical to the growth and success of any business,” he says. “Companies that invest in an HR and payroll solution which does not include a legislation, compliance and tax advisory service run the risk of incurring harsh penalties when it comes to tax returns or any other regulatory submissions. For example, the cost of non-compliance with South Africa’s employment equity legislation starts at R1.5 million.”

A deep understanding of the inherent complexities of labour, tax and related frameworks

CRS’s advisory service is specifically geared to helping business add value while minimising risk.

“CRS has a deep understanding of the inherent complexities of labour, tax and related frameworks, not only in South Africa, but also other African countries and the Middle East,” McAlister explains. “Our centre of expertise comprises a highly respected team of consultants who oversee statutory compliance, unravel the jargon and keep decision-makers informed and protected on an up-to-the minute basis.”

This includes:

  • Statutory deductions
  • Social security
  • Levies
  • Employee entitlements (leave, bonuses, allowances)
  • Statutory returns
  • Fringe benefit tax
  • Income tax
  • Advice on labour legislation, contracts, policies and procedures, unions and dismissals
  • HR and payroll audits
  • HR and payroll country fact sheets and requirements

Additionally, CRS offers a tax advisory service to its HR and payroll clients, through its partnership with Tax Debt Compliance, an experienced SARS negotiation team.

For more info, click here to contact us

NOVEMBER 2019 – SOUTH AFRICA
EXPLANATORY SUMMARY OF THE TAX ADMINISTRATION LAWS AMENDMENT BILL, 2019

It is important that employers note the following:

Publication of the Explanatory Summary of the Tax Administration Laws Amendment Bill, 2019

Government gave notice that the Minister of Finance intends to introduce the Tax Administration Laws Amendment Bill, 2019 to the National Assembly soon. An explanatory summary of the Bill was published in accordance with the Rules of the National Assembly.

The Bill provides for the amendment of the Income Tax Act, 1962; Customs and Excise Act, 1964; Value Added Tax Act, 1991; Skills Development Levies Act, 1999; Unemployment Insurance Contributions Act, 2002; and the Tax Administration Act, 2011.

Short overview of the changes:

  • Income tax Act: To make technical corrections; to remove a requirement to submit a declaration to a regulated intermediary in respect of tax free investments; to clarify that a penalty may be imposed if an employer submits an incomplete return; and to insert a provision that an executor need not submit a provisional tax return for the provisional period ending on the date of death.
  • Value-Added Tax: To make technical corrections; to remove a requirement that the Minister of Finance must prescribe the particulars to be contained on a tax invoice issued by a foreign supplier of electronic services; and to clarify that rulings under the Act are not subject to the prescribed fee under the Tax Administration Act, 2011.
  • Skills Development Levies Act: To make technical corrections; to provide for a procedure if an employer has incorrectly indicated the jurisdiction of a SETA; and to align the time periods for a refund under the Act with the Tax Administration Act, 2011.
  • Unemployment Insurance Contributions Act: To align the time periods for a refund under the Act with the Tax Administration Act, 2011.
  • Tax Administration Act, 2011: To make technical corrections; to extend the notice period prior to the institution of legal proceedings; to clarify that an assessment or decision is final if an appeal is withdrawn; to clarify when SARS may make an assessment based on an estimate if no return is submitted or required; and to align the provisions regulating the tax compliance status of a taxpayer with the automation thereof.

To view the government notice, follow the link

Contact our legislation team at info@crs.co.za if you require any additional information.
© 2019 C
RS Technologies (Pty)Ltd. All Rights Reserved.

OCTOBER 2019 – SOUTH AFRICA
COMMENCEMENT OF SECTIONS OF THE LABOUR LAWS AMENDMENT ACT, 2018

It is important that employers note the following:

The commencement date of some sections of the Labour Laws Amendment Act, 2018

Proclamation No. R 56 of 2019 was published in Government Gazette No. 42805 on 29 October 2019 to announce the commencement date of the sections regarding the new Parental leave and Commissioning Parental leave.

This means that employees can start making use of the parental and commissioning parental leave as from 1 November 2019.

The sections of the Labour Laws Amendment Act, 2018 which will take effect on 1 November 2019, are as follows:Section 8(a)(cA): Section 12 of the Unemployment Insurance Act, 2001, is amended by adding parental benefits and commissioning parental benefits.

    • Section 8(a)(cA): Section 12 of the Unemployment Insurance Act, 2001, is amended by adding parental benefits and commissioning parental benefits.
    • Section 11: The right to parental benefits is inserted in the Unemployment Insurance Act, 2001, after section 26.
    • Section 15: Section 58 of the Unemployment Insurance Act, 2001, is amended by adding parental and commissioning parental benefits in subsection (12)(c).
    • Section 16: The title of the Unemployment Insurance Act, 2001, is amended by adding parental and commissioning parental benefits to be provided for, for payment from the Fund.

To view the Proclamation in Government Gazette No. 42805, follow the link

Contact our legislation team at info@crs.co.za if you require any additional information.
© 2019 C
RS Technologies (Pty)Ltd. All Rights Reserved.

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