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Intention is everything: The role of intent in employee discipline for dishonesty and/or fraud

By Thabang Rapuleng, Director, Tamsanqa Mila, Associate, Employment Law, Cliffe Dekker Hofmeyr

 

Employers tend to charge employees who have received financial gain from misconduct with dishonesty or fraud even in cases where the “benefit” can be attributed to human error or negligence.

 

In the case of Drs Dietrich, Voigt and MIA v Bennet CM N.O CA 14/2016, the Labour Appeal Court confirmed that not all conduct that leads to financial benefit is nefarious. Sometimes, employees may have a reasonable explanation, and in such cases, a dismissal is not the appropriate sanction.

 

In December 2012, Mr Ngcobo was assigned to work on a project with the Head of Basic Haematology Research Group and he was expected to work overtime. He agreed to be paid at a rate of 1.0 per hour (his normal hourly rate).

 

After concerns from Mr Ngcobo’s line manager regarding his overtime claims, the employer audited his claims forms and the investigation revealed the following:

 

  • Mr Ngcobo claimed overtime at an incorrect rate for a period of three months in July, November and December 2013 - he had submitted claims at the rate of 1.5 per hour which was higher that his normal hour rate.

 

  • In addition, he had claimed payment for time that he was not at the workplace in that there were 13 instances where he had failed to “clock out” during lunch break thus representing an incorrect reflection of his actually hours worked.

 

  • The employer suffered a loss of R8,647.60 as a result of the employees conduct.

 

Mr Ngcobo was charged with dishonesty and/or falsification of overtime claims. He was found guilty and he was dismissed on 10 April 2014.

 

At the CCMA, Mr Ngcobo challenged the substantive fairness of his dismissal. During arbitration, he admitted to claiming overtime for time spent outside the workplace during his lunch hour however he explained that his actions were not dishonest and intentional and had apologised for the transgressions.

 

In relation to the second charge, Mr Ngcobo also explained that the claims submitted at the rate of 1.5 per hour were made in error. He explained that they were not submitted with an intention to deceive the employer because they were supported by time sheets which were approved by his manager.

 

The commissioner considered the evidence and held that the employer failed to prove that Mr Ngcobo had acted dishonestly and/or deliberately falsified his claims. He found Mr Ngcobo guilty of negligence, sanctioned him with a written warning valid for 12 months and ordered retrospective reinstatement.

 

On review, the Labour Court upheld the decision of the commissioner. Rabkin-Naicker J also observed that the Mr Ngcobo’s claims were approved by his line manager who had also recorded on email that she and Mr Ngcobo had learned a lesson from their mishaps.

 

On appeal, the employer argued that the employee was guilty of dishonesty and not negligence because during the arbitration proceedings, the employer had shown that the employee had deliberately submitted false claims. The Labour Appeal Court held that the main issue to be determined was whether the employee acted intentionally or negligently.

 

The court examined the test for “reasonable person” in the context of the workplace and held that the employee failed to act with the degree of care and standard expected of a person in his positio n. It assessed the evidence that was before the commissioner and held that the commissioner’s findings were reasonable.

 

This case cautions employers against charging employees with dishonesty simply because the employee has enjoyed some financial gain as a result of his or her misconduct. Although benefiting from a misconduct financially aggravates the misconduct, it does not always result in a finding of dishonesty or fraud. An employer must be prepared to look beyond the conduct and consider the explanation provided by the employee during the investigation or at the disciplinary enquiry.

 

For more information please contact Thabang Rapuleng at or Tamsanqa Mila at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

 

 

What does POPI compliance mean?

By Jan du Toit

 

Latest developments – Registration of Information Officers:

 

On 17 May 2021 the Information Regulator’s long awaited online portal went live for the registration of Information and Deputy Information Officers.

 

The Information Officer of a Responsible Party is the person at the head of your company (CEO or MD) or any person acting in such capacity, or specifically appointed by the MD or CEO to be the Information Officer. Registration must be completed before the end for June 2021.

 

The address for the portal is  https://justice.gov.za/inforeg/portal.html   

 

The following information is required to successfully register: 

  • Company name.

  • Company registration number.

  • Company type.

  • Company physical and postal addresses.

  • Company telephone and fax numbers.

  • Information Officer gender, nationality, full name and surname, ID or passport number.

  • Deputy Information Officers same details as per above.

 

POPIA Compliance – what must be done?

With a little more than a month left before POPI becomes fully effective, many employers may find themselves out of time to become fully compliant to amongst other considerations, the 8 processing conditions prescribed in the Protection of Personal Information Act.

 

To be considered compliant the following must be considered and applied in the business of a Responsible Party before 1 July 2021. 

  1. POPI training / awareness sessions for the CEO / MD, managers and others tasked with the company’s POPI compliance project. Have a look on our website for the next POPIA training dates.

  2. Compliance audit to be conducted company-wide per department / division to determine the current processing practices within the organization and to establish what needs to be done to be compliant.

  3. Correction of contraventions as identified, and to introduce reasonable technical and organizational measures to prevent the loss or unauthorized access of Personal Information.

  4. Introduction of Data Subject rights and consent in the business through policies and consent clauses / paragraphs / contracts.

  5. The introduction of a PAIA manual (Promotion of Access to Information Act) that incorporates data subject rights and participation in terms of POPIA. This manual must be published on one of the company’s websites. It is also important to note that the current exemption granted by the Minister of Justice for some business to not have such a manual in place currently, expires at the end of June 2021.

  6. General staff POPI policy and legislation awareness training.

  7. Registration of the company’s Information Officer (the CEO, MD or any person acting in such position).

  8. Follow-up assessment on compliance measures and adherence thereto.

 

It is important to note that no institution, not even the Information Regulator, can “accredit” any Responsible Party in South Africa to be compliant in terms of legislation. Compliance (or otherwise) will only be determined should an investigation be launched by the Information Regulator following a complaint. Should such an investigation confirm a lack of compliance, consequences such an administrative fine not exceeding R10m may follow (which one may luckily pay off in instalments). Further to this those whose rights are infringed upon by a Responsible Party not adhering to the requirements of POPIA, may also institute civil proceedings. Such  proceedings may result in compensation being awarded for loss, as well as aggravated damages determined at the discretion of the court.

 

In terms of section 19 of the Act, the Responsible Party (business owner / employer) is required to introduce reasonable organizational and technical measures to secure the integrity and confidentiality of Personal Information. The organizational measures referred  to above includes inter alia both internal and external policies to introduce the principle of protection of personal information in the workplace, as well as the rights of data subjects.

 

To allow you more time to focus on your business, the author of this article compiled a bundle of detailed policies for your business, ready to use. This includes all relevant forms to be used and a template document with draft consent clauses / paragraphs / rules  to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages, and Independent Contractor agreements.

 

Also included is an Operator Agreement as required in terms of section 21 of the Act and a consent letter for existing clients / service providers, to agree to the continued processing of their Personal Information beyond June 2021.

 

The policies bundle includes: 

  • Privacy notice template to be published on your website.

  • Personal information protection policy.

  • Personal information retention policy.

  • Data breach policy.

  • Data breach register - form.

  • Data breach report - form.

  • Data security policy.

  • Data subject access request policy and procedures.

  • Data subject access request forms.

  • Processing agreement with third parties as Operators - contract.

  • Data subject participation - draft consent paragraphs / clauses to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages and Independent Contractor agreements

  • Guidelines on the appointment of deputy information officers, inclusive of appointment letter.

 

For only R3750 you can now order you set of POPI policies, ready to use. Contact Jan du Toit for further assistance at

 

 

 

 

 

 

 

 

Courses and Workshops

 

                   

 

POPIA: Protection of Personal Information Act

18 June 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

22 June 2021 (09:00 - 12:00) Fully Booked)

Interactive Online Course

22 June 2021 (13:00 - 16:00) (Fully Booked)

Interactive Online Course

23 June 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

23 June 2021 (13:00 - 16:00) (Fully Booked)

Interactive Online Course

29 June 2021 (09:00 - 12:00)

Interactive Online Course

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

23 & 24 June 2021 (08:30 - 13:00)

Inter active Online Course

Basic Labour Relations

24 June 2021 (09:00 - 16:00) (Fully Booked)

Interactive Online Course

29 July 2021 (09:00 - 16:00)

Interactive Online Course

AARTO and the Impact on Your Business

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

Interactive Online Course

Employment Equity Committee Training

02 July 2021 (09:00 - 16:00)

Interactive Online Course

Workshop Chairing Disciplinary Hearings

15 & 16 July 2021 (09:00 - 16:00)

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

16 July 2021 (09:00 - 12:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

22 July 2021 (09:00 - 12:00)

Interactive Online Course

Management and Leadership Skills

28, 29 & 30 July 2021 (08:30 - 16:00)

Interactive Online Course

 

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