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This is another question that arises time and time again. Very often, it emanates from the fact that trade unions, or the respondent’s legal adviser, will demand to be given copies of any witness statements or other evidence in the possession of the employer, prior to the disciplinary hearing.


Firstly, it must be remembered that the disciplinary hearing is an internal matter - the disciplinary hearing is not a court of law - and therefore any such principles that may be applicable to a Court of Law does not necessarily apply to the disciplinary hearing.


In terms of the disciplinary hearing, the employer can make provision in his disciplinary code and procedure regarding such matters. It must further be remembered that the forum for presenting evidence is at the disciplinary hearing - not prior to it.


The respondent - and the complainant for that matter – must, during the hearing,  listen to the evidence of the other side, must listen to any verbal evidence given by witnesses, and make notes regarding any points in that evidence that he requires to contest or dispute in cross-examination.


In ESKOM / NUMSA obo Galada and Others [2000] 7 BALR 812 (IMSSA) this very question was addressed. It was ruled that employees are not entitled to be furnished, prior to disciplinary hearings, with documentary evidence which the employer intends to introduce.


It is sufficient that employees be given, prior to the hearing, sufficient detail of the charges to enable the employee to prepare a defence, and to be given a reasonable opportunity during the hearing to examine the evidence of the complainant.


Among other things, the trade union contended that the disciplinary proceedings were unfair because none of the dismissed employees had been furnished in advance with documentary evidence which the employer introduced at the hearing.


The employer's disciplinary code made specific provision in this regard - it provided specifically that accused employees should be given an opportunity to examine evidence only during the disciplinary hearing. There was no provision in the Code for employees to be placed in possession of such evidence prior to the hearing.


The award stated further that accused employees do not have an absolute right to access the employer's evidence in advance of disciplinary hearings. In this particular case, the employees had been given a reasonable opportunity to examine the documentary evidence during the disciplinary proceedings - and therefore there was no procedural unfairness in that respect.


It is not a good thing for an employer to introduce written witness statements into evidence, and it is not a good thing for him to allow his witness to merely read from his written statement as evidence. If he does so, then generally the other side becomes entitled to a copy of that written statement - and they can cross-examine the witness on the content of his written statement rather than on his verbal testimony.


That sort of situation can cause problems if the witness has skipped over, or left something out of his evidence, in his verbal submission when it is written into his written statement. Employers should properly prepare their witnesses before the disciplinary hearing, and lead the witness in his evidence in such a way that the witness testifies to everything that is in his written statement, but does so verbally and the written statement is not actually introduced into evidence.


It is possible during a hearing that the accused employee or his representative may ask for an adjournment in order to enable them to study any documentary evidence that has been introduced. Obviously, provided the request is a reasonable one, there is nothing preventing the respective parties from agreeing to a reasonable postponement or adjournment.


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POPI and consent - don’t get caught in your own net

By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr

 

2020 has given rise to many challenges for employers. The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. 

 

POPI distinguishes between the collection, storage and processing of personal information and special person information. Special personal information includes e.g. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees.

 

It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance. 

 

Section 1 of POPI defines consent as “any voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal information”. Written consent is not expressly required. However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. In the circumstances it is advisable for employees’ written consent to be secured. 

 

The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed.

 

The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR.

 

In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. The employees must be able to understand in clear language what they are consenting and the extent of the consent. Where necessary provisions should also be made specifically for the processing of special personal information.

 

Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee.

 

Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI. 

 

Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. This would cover instances where e.g. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act.

 

An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. While the term “legitimate interest” is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?

 

A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions.

 

So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. In the absence thereof, the employer will need to prepare and secure a further consent from the employee.

 

For more information, please contact Gillian Lumb at   

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

 

 

 

 

 

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