Category — Employment Law

Please take note that this afternoon Acting President Kgalema Motlanthe declared Tuesday 27 December 2011 as a public holiday throughout the Republic in terms of Section 2A of the Public Holidays Act 1994.

For employees taking holidays over the Christmas and New Year break, 27 December 2011 will no longer be deducted from their annual leave and employees working on this day will now be entitled to public holiday allowances, pursuant to section 18 of the Basic Conditions of Employment Act 1997.

Workplace Strategies

14 December 2011

Smartphones, those handy devices that can browse the web and send/receive email messages, are now the fast growing segment of the cellphone market and research in South Africa indicates that they are entering the market four times faster than PCs and laptops.

Employers have been quick to recognise the possibilities of smartphones and a recent report entitled ‘Mobile Corporation in SA 2010’ suggests that three-quarters of South African companies have now deployed smartphones within their organisations, compared with almost none two years before.

The benefits for employers of providing staff with smartphones are plain to see.    Employees are given virtually 24/7 access to clients and colleagues, with positive effects on productivity and output.   Indeed, employees have warmed to this new technology and its applications.   Survey results suggest that:

• around 70% of workers with smartphones regularly check their email outside normal business hours;
• 42%  of workers log into business email accounts while home on sick leave; and
• 43% of workers connect to email on smartphones in order to get ahead and ease their workloads for the following business day.

However, when it comes to employees armed with smartphones, significant risk comes with the rewards.   Consider this hypothetical.

Jane works for a professional services firm in the financial industry.   She is well qualified and perceived as a rising star in the organisation.    In her three years of service, not once has Jane acted against the interests of her employer and her highly-developed communication skills, particularly with clients, have won her considerable praise.    After a particularly bad day at the office, in which  she receives unfounded accusations by a major client, Jane goes home, smartphone in hand, and relaxes with a glass of wine.   Or three.     The injustice of the day’s events cannot be shaken from her mind and late into the evening, she decides to send an email to the client outlining her thoughts.      This is not a good decision.  Free from the confines of the office environment, Jane’s late-night email includes statements that she would never have said had she been in the office in front of her laptop.      The results, for both Jane and her employer, are disastrous.     

Jane’s ill-advised email is one of many potential risks that employers must address because of the use of smartphone technology.

Companies must urgently revisit their Information Technology (IT) Policies with a view to:

• ensuring they have expanding acceptance usage and communication policies to encompass smartphone applications;
• addressing situations where employees may copy and remove confidential information using a smartphone’s camera or Bluetooth ^TMcapabilities;
  • requiring smartphones, like PCs and laptops, to be enabled with security software and password protection;
  • addressing whether communication via smartphones can constitute after-hours work, giving rising to overtime payment claims; and
  • ensuring that employees using their personal smartphone do not retain company data, once the employment relationship is at an end.

Workplace Strategies is a consulting firm assisting organisations with people management.   It has extensive experience in workplace policy formulation and implementation.

For more information see:

web: www.workplacestrategies.co.za

email info@workplacestrategies.co.za

Employers have historically made use of a variety of pre-employment screening tools, from job applicant reference checking with previous employers, to more sophisticated methods such as criminal record checks, financial history checks, drivers licence verification and identity verification.

More recently, screening tools have been expanded to include CCMA checks, a service whereby a search is performed to determine whether the job applicant is featured in any CCMA awards or Labour Court judgements.     Organisations offering this service maintain that the benefits of a CCMA check are that it verifies information submitted in a job application, particularly an individual’s reason for leaving their former employers.   It is also suggested that if applicants are asked during the recruitment process whether they have had previous disciplinary records or CCMA claims, the checks can be determinative of their level of honesty.

However, employers must appreciate that very few CCMA claims are finalised by a CCMA award or Labour Court judgment.        The CCMA’s Annual Report for the financial year 2008/2009 suggests that 62% of disputes were resolved at conciliation, which means no award was made in the resolution of the dispute.   Of the disputes that do proceed to arbitration, only 34% resulted in an award, a small percentage of claims actually filed with the CCMA.   The Labour Court has similar trends of resolving claims by agreed settlement, rather than by judgement of the Court.

It should also be appreciated that some industries have their own dispute resolution mechanisms which oust the jurisdiction of the CCMA.   In sectors such as construction, road freight, the chemical industry, the electrical industry and the public sector, dispute resolution powers are given to Bargaining Councils in place of the CCMA.     This may undermine the effectiveness of CCMA checks, given that a job applicant could have lodged numerous unfair dismissal claims that do not feature in a CCMA check because those claims were resolved outside the ambit of the CCMA.

CCMA and Labour Court screening could prove to be a useful tool for prospective employers seeking to verify job applicant details, but the limitations of CCMA checking must be acknowledged and employers should be cautioned about using such checks in isolation.