Latest news with #CliffeDekkerHofmeyr
Daily Maverick
18-05-2025
- Politics
- Daily Maverick
Employers and schools can no longer claim ignorance of cyberbullying
South Africa has a robust set of laws to tackle cyberbullying in schools and workplaces. However, in classrooms, offices and online chats, the updating and enforcement of these policies remain deficient. In 2021, a video of 15-year-old Limpopo schoolgirl Lufuno Mavhunga's violent assault at the hands of a fellow learner went viral. Following the assault, Mavhunga took her own life. An investigation by the South African Human Rights Commission found that the school had failed in its duty of care, ignoring pleas from her family and failing to act when alerted. 'We have very good laws,' said Dr Sershiv Reddy, senior lecturer in the department of mercantile law at the University of Johannesburg. 'But sometimes we are impeded by enforcement, maybe due to the lack of funding or other resources.' South Africa's legislative toolkit, including the Protection from Harassment Act (2011) and the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda, 2000), offers remedies for victims of harassment and discrimination. These protections often vanish in the policy void between written laws and day-to-day practice. No adults in the room 'More than 95% of our children have access to the internet,' Reddy said 'The keyword is access. It doesn't mean that they may have a mobile device at home, but it means they have access via other means. That could be through a school computer, through the library, [or] an internet café.' Seventy percent of children access the internet without their parents knowing, and more than half of South African schoolchildren have been victims of cyberbullying, Reddy said. In 2018, the Ipsos Research Institute ranked South Africa fifth in a global survey of 28 countries measuring cyberbullying rates. And it's not just children. Anli Bezuidenhout, employment law director at Cliffe Dekker Hofmeyr, pointed out that teachers and employees are also victims of online harassment. WhatsApp and HR While bullies have migrated to WhatsApp groups, Instagram direct messages (DMs) and Zoom calls, schools and workplaces seem stuck in a pre-digital era, failing to proactively update policies. 'Where in the past we may have had policies relating to sexual harassment, we now often see those policies haven't been broadened to also deal with issues such as cyberbullying,' Bezuidenhout said. This is despite the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, which came into effect four years ago. It states that employers (including schools) should have anti-harassment policies that also cover digital spaces. Bezuidenhout explained that the code introduces the requirement to review other policies, such as a company or school's social media policy. Off the clock, still on the hook Tim Fletcher, director and chair of dispute resolution at Cliffe Dekker Hofmeyr, describes the Protection from Harassment Act as 'a fairly draconian remedy', but one that is easily obtainable. Victims can approach the magistrate's court, whether in their area, the perpetrator's, or where the incident happened, to secure an interim protection order, Fletcher said. This order becomes effective the moment it is served, and if unchallenged, it converts into a final order with an attached warrant of arrest. Pepuda, meanwhile, offers even broader powers through the Equality Court, allowing action on virtually any ground undermining dignity. And critically, cyberbullying outside of working hours is still grounds for disciplinary action. 'It's off-duty misconduct, you're against the school conduct, against the company's conduct, bringing the company into disrepute. I would still be able to discipline such an individual,' Aadil Patel, head of employment law at Cliffe Dekker Hofmeyr, said. How does this affect you? The boundaries between public and private, workplace and home, have blurred. WhatsApp groups, private DMs and social media posts are not outside the law's reach. Cyberbullying at school or at work is not something you have to endure quietly. The legal system offers tools for protection. But those tools only work if victims and communities know they exist, and use them.
The Citizen
15-05-2025
- The Citizen
Can you get fired for being racist? Here is what employers and employees need to know
Employers are under a legal obligation to ensure that the workplace is free from unfair discrimination and harassment. Racism does not always scream; it whispers, it jokes, it excludes, and it kills dreams before they are even spoken. Racist abuse and harassment are forms of direct discrimination, and employers have a duty to protect their employees from any form of discrimination. Section 6 of the Employment Equity Act (EEA) 55 of 1998 prohibits unfair discrimination and provides that harassment, including racial harassment of an employee, is a form of unfair discrimination. Thato Makoaba, an Associate in the Employment Law practice at Cliffe Dekker Hofmeyr, told The Citizen that racial harassment is unwelcome conduct related to a person's race, ethnic origin, or social background that impairs dignity, creates a hostile or intimidating environment, or coerces submission through threats. ALSO READ: Minister defends racial classification on government form, explains why it exists What employers need to know about racial harassment at work Makoaba stated that employers are under a legal obligation to ensure that the workplace is free from unfair discrimination and harassment. Failure to act on instances of racial harassment amounts to a contravention of the EEA. Accordingly, it is essential for employers to determine whether particular behaviour constitutes racial harassment. Key indicators include: Whether the conduct undermines the employee's dignity; Whether it is persistent, harmful, or abusive; Whether it targets individuals based on race or ethnic identity; The overall impact on the affected employee(s). How can employers combat racial harassment? He said employers need to implement robust and well-communicated workplace policies to proactively combat harassment. 'In accordance with the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, all employers are required to adopt a zero-tolerance approach to harassment.' An effective workplace harassment policy should include: Clear channels for reporting complaints; The employer's responsibilities upon receiving a report; Support mechanisms that are available to affected individuals; Procedures for the investigation and resolution of complaints; Disciplinary measures applicable to perpetrators. 'Such a policy not only helps to deter harassment but also promotes consistency in the handling of complaints. It educates employees on acceptable standards of behaviour and affirms the employer's commitment to fostering a safe and respectful working environment.' The content and communication of this policy will be taken into account when assessing an employer's compliance with the EEA. ALSO READ: How to create a healthy work environment for employees What should employers do? Makoaba added that while every complaint should be addressed with seriousness and sensitivity, employers must also be mindful of the risk of false allegations. To safeguard the integrity of the complaints process, employers should: Conduct all investigations in a fair, thorough, and confidential manner; Include within their policy that malicious or knowingly false accusations constitute misconduct; Treat substantiated false claims as disciplinary offences, which may warrant dismissal. An employee fired after false accusation He said that in November 2024, the Labour Court had to consider whether an employee who was falsely accused of racism was, in fact, subjected to unfair discrimination as prohibited by the EEA. 'The employee was accused of being racist by one of his subordinates. The Western Cape Education Department convened a disciplinary enquiry to test the veracity of these allegations. 'An independent chairperson concluded that the allegations of racism did not have any merit and, consequently, no action was taken against the employee for the allegations of racism.' ALSO READ: Insults on FlySafair flight: You could get jail time for unruly behaviour in the sky Employee dissatisfied with the outcome However, the employee was dissatisfied with the department's conduct and proceeded to refer a claim in terms of section 6(1) and 6(3) of the EEA on the basis that he had been harassed and thus unfairly discriminated against. Furthermore, the employee sought to hold the department vicariously liable for the harassment under section 60 of the EEA, arguing that it had failed to take reasonable steps to eliminate the alleged harassment. The court's findings Makoaba added that the court identified difficulties with the way the employee's case was pleaded and inquired what the exact ground of discrimination was, as it was not readily apparent from the employee's statement of claim. Furthermore, the court noted that the employee did not plead that he was unfairly discriminated against based on listed grounds, i.e. that he was accused of being racist by a subordinate because he was a white male (with the listed grounds being race and gender in this example). 'Ultimately, the employee's failure to plead his case with sufficient particularity proved to be fatal as the court upheld the Department's application for absolution from the instance,' said Makoaba. NOW READ: How to work with difficult managers
Daily Maverick
05-05-2025
- Business
- Daily Maverick
Back to the office — can your boss force you to go?
South African labour law hasn't kept pace with the mass migration to home offices, shared dining tables or kitchen counters. While remote work has become a new default, it presents a legal grey zone that could trip up both workers and the companies relying on them. Once a pandemic lifeline, remote and hybrid work are now permanent fixtures of South Africa's employment landscape. Logging in from home might feel like business as usual, but the right to do so can be shaky in legal terms. Meanwhile, employers hoping to drag teams back to the office face legal, ethical and operational complications. 'Remote working is not specifically catered for in [South Africa's] current legislative framework,' says Yvonne Mfeka, director of employment law at Cliffe Dekker Hofmeyr. 'However, the ability to work remotely will be construed as a benefit for purposes of the Labour Relations Act (LRA).' The contract conundrum The Basic Conditions of Employment Act (BCEA) mandates that employers provide written particulars of employment. If your office has shifted to your living room, your paperwork needs to reflect that. 'Updated contracts protect both the employer and employee by clearly outlining expectations, responsibilities and rights in the new working arrangement,' Fatima van Toorn, managing member of FvT HR consulting, explains. Data protection, confidentiality, electricity costs, backup power and even internet expenses should be ironed out in writing. 'There should be clear stipulations about who bears the cost for internet, electricity and equipment needed for remote work,' Van Toorn says. While it may seem like a perk, Van Toorn warns that remote work should always come with a built-in back door: 'Contracts should include provisions about the employer's right to revoke the employee's concession to work remotely and revert to office-based work if necessary.' Productivity gains and losses For some, remote or hybrid work has been a gift of time and efficiency. Van Toorn says that many of their clients have retained remote working or hybrid arrangements since the pandemic, precisely because performance remained strong. 'Remote work has had a positive impact on employees who were accustomed to spending many wasted hours sitting in traffic,' she says. But not every home office is a sanctuary of focus and flow. Freelance copywriter Havana Duancey, who has worked remotely part-time since 2021, offers a more nuanced take. 'Working remotely was conducive to my productivity because it allowed me to work around my studies and choose my own hours,' she points out. 'However, I'm definitely more productive in a group setting […] communication was much more effective in person.' Duancey's experience highlights a common concern: while remote work offers flexibility, it can erode team cohesion and mental health. 'My mental health definitely benefits from a separation between work and rest,' she says, 'so I would sometimes struggle setting boundaries between work and rest time while working from home.' How does this affect you? If you're an employee: Check your contract. If it doesn't mention hybrid or remote arrangements, you may have less protection than you think. If remote work is listed as a benefit, your employer can't yank it without your consent. You still have rights such as rest periods and fair treatment, even if you're working in slippers. If you're an employer: Update contracts and create clear remote work policies. Know that you can require a return to the office, but only if it's fair, lawful and contractually sound. Protect your company by addressing compliance and performance management proactively. The risks of remote Keeping a workforce together that's scattered across suburbs, cities or provinces is a puzzle of compliance. 'The Occupational Health and Safety Act requires employers to provide a safe working environment,' Van Toorn says. 'Ensuring home workspaces meet safety standards is challenging to monitor and enforce. Liability for injuries sustained while working from home can become a challenge.' There's also the matter of working hours and overtime. The BCEA regulates these tightly, but enforcing them in a remote context is a different beast. 'Monitoring actual working hours becomes more challenging,' Van Toorn notes. 'The blurring of work-life boundaries can lead to employees working outside of agreed hours, raising questions about compensation and compliance.' Other issues include employment equity — where remote work may disadvantage employees without reliable home setups — and cross-border complications. 'Employees might work from different provinces or even countries,' Van Toorn says, which can create 'complex tax implications and questions about which labour laws apply.' Can they really force you back to the office? Short answer: yes. Long answer: it's complicated. Mfeka confirms that employers could require their employees to return to the office. However, they had to do so fairly and lawfully. 'To the extent that an employer compels an employee to return to the office without reaching an agreement, this would potentially constitute a breach of contract of employment,' Mfeka says. Changing your work location, just like changing your salary or job title, requires consent. Thus, you can't be dragged back into peak-hour traffic without some paperwork and a conversation. DM
