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Month: October 2018

AGA (SA) – Relevance, enhanced recognition and status for accountants

AGA (SA) – Relevance, enhanced recognition and status for accountants

The journey to reach the Chartered Accountant South Africa CA(SA) designation has been described as one of the most difficult career paths in South Africa. With the professional accounting body, South African Institute of Chartered Accountants (SAICA), being established as one of the best in the world, and providing the highest of standards and excess of opportunities once reached, it is understandably so.

To become a CA(SA), a 3-year degree and honours degree is required, as well as a 3-year training contract, in layman’s terms referred to as “articles” (this might differ depending on studying while performing articles or the level of studies when starting). A trend has been occurring amongst hopefuls on this path, where studies and articles are started, but for various reasons, the honours part of the qualification is not completed. This results in a qualified accountant without a professional title or association to a professional body.

SAICA has recognised the need for qualified accountants to belong to a professional body, and therefore the establishment of the Associate General Accountant South Africa AGA(SA) designation.

With the establishment of the AGA(SA) designation, it allows a significant number of exceptionally-qualified South African accountants to gain access to professional recognition and career development through association with a highly-regarded professional body.

AGA(SA) provides many similarities to that of the CA(SA) designation. As AGA’s are recognised members of SAICA, they must apply to the same code of conduct. Thereby reassuring the public of the integrity of AGAs and suggesting a certain quality of work that can be expected.

Requirements:

  • A SAICA-accredited B.Com degree

  • A SAICA-accredited training contract

AGAs can:

  • Compile financial statements

  • Perform and sign off of independent reviews for companies with a public interest score below 100

  • Register as tax practitioners and assist with tax compilation and planning

  • Design and operate internal accounting systems

  • Provide management with information that enables them to plan, monitor and control their business

  • Communicate information effectively

  • Act as a commissioner of oaths

AGA(SA) benefits:

  • Access to SAICA products and services

  • A subscription to the ASA Magazine

  • Access to CPD

  • Invitations to SAICA seminars and events

  • Access to SAICA Member Services

  • Receive SAICA Newsletters

The relaunch of the AGA designation is a great asset to the public and a very useful alternative for those individuals who don’t necessarily become chartered accountants, giving recognition where it is due. The designation continues to grow in potential, membership and career recognition.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

RACISM IN THE WORKPLACE – IT’S NOT ALWAYS BLACK OR WHITE

RACISM IN THE WORKPLACE – IT’S NOT ALWAYS BLACK OR WHITE

Introduction

This article discusses two recent Constitutional Court judgments, which deal with racism, or perceived racism, in the workplace. Although each judgment and respective outcome should be understood in the context of the specific facts, certain parallels are worth noting. Both judgments had to decide whether the language used in the context was racist. In both cases, the employees concerned were dismissed by the employer and the employer’s decision was challenged by way of arbitration proceedings. In both cases, the arbitrator directed that the employees be reinstated. The Constitutional Court, in both cases, applied its well-known Sidumo test to decide whether or not the awards should be upheld. The test determines whether the decision made by the arbitrator is one which a reasonable decision-maker could not reach. The test ensures the constitutional rights to fair labour practices and administrative action which is lawful, reasonable and procedurally fair. The two judgments are now discussed.

Rustenburg Platinum Mine v SAEWA obo Bester and Others

Mr Bester was an employee at Rustenburg Platinum Mine. An incident occurred on 24 April 2013, the details of which were disputed. The Constitutional Court ultimately accepted that Mr Bester interrupted a safety meeting and demanded that a car which was parked next to his own be removed. He pointed his finger at the applicant’s chief safety officer, Mr Sedumedi, and loudly commanded, “Verwyder daardie swart man se voertuig”, in reference to another employee’s 4×4 vehicle, otherwise he would take the matter up with management.

Mr Bester was forthwith suspended pending the outcome of a formal disciplinary enquiry. He was charged with two acts of misconduct, namely: insubordination for disrupting the safety meeting and for making racial remarks, which breached a workplace rule prohibiting abusive and derogatory language. On 28 May 2013, Mr Bester was dismissed by the applicant after being found guilty on both grounds.

Mr Bester referred the dispute to the CCMA for arbitration and the arbitrator’s award was taken on review to the Labour Court, the Labour Appeal Court and ultimately to the Constitutional Court. The arbitrator concluded in his award that the dismissal was both substantively and procedurally unfair and ordered the reinstatement of Mr Bester. However, the arbitrator misdirected himself on the facts and found in favour of Mr Bester that in the context the words “swart man” were used, it was innocuous and for the purpose of identification. This defence had not been raised and was unsupported by evidence. Mr Bester’s defence was to deny making the statement.

In the Constitutional Court, Theron J, in a unanimous judgment, held that to regard the words “swart man” as innocuous in the context, ignores South Africa’s past of institutionally entrenched racism. The objective test had to be applied to the correct facts. On this basis, “swart man” was “racially loaded and derogatorily subordinating”. The arbitrator’s conclusion was one that a reasonable decision-maker could not have reached. The sanction of dismissal was reinstated, due to Mr Bester’s dishonesty in denying making the statement and his lack of remorse.

Duncanmec (Pty) Limited v Gaylard N.O. and Others

In this case, nine employees participated in an unprotected strike and were filmed singing a struggle song which featured lyrics that translate to, “Climb on the rooftop and shout that my mother is rejoicing when we hit the boers”. The employees were found guilty of participating in an unlawful strike action and also for singing a racially offensive song. After being given a final warning for the former offence, they were dismissed on the latter offence. Duncanmec justified its decision by contending that the conduct of the employees irreparably eroded the trust relationship between employer and employees.

Before the Bargaining Council, the arbitrator ordered the reinstatement of the employees, reasoning that the employees showed remorse and that the employment relationship had not broken down irretrievably. In addition, it was necessary to distinguish between singing a song which could cause harm and referring to someone in racist language.

The Constitutional Court, in a unanimous judgment written by Jaftha J, noted that increasing instances of racism in the workplace were becoming worrisome. It held that the use of the word “boer” in isolation was not racist or a racially offensive word, but that in the particular case, its use in the song sung by the employees was inappropriate and racially offensive. The Court, however, in applying the Sidumo test, held that the arbitrator had not acted unreasonably, nor, as contended by Duncanmec, applied her own sense of fairness in determining that the dismissal was substantively unfair. The award was therefore upheld.

Conclusion

In conclusion, in the light of these two recent judgments, it is evident that racism in the workplace is a recurring issue with which courts must deal to hold individuals accountable if their conduct is found to be racially offensive and an infringement of constitutional rights. However, it is unrealistic to expect that courts, or the threat of legal action, can prevent persons in the workplace from persisting with racist behaviour. It is therefore important that employers have adequate rules in place which expressly prohibit racist words and conduct, so that violations can be dealt with expeditiously and effectively. The judgments also indicate that should those found guilty of racism show no remorse, dismissal will be viewed as an appropriate sanction.

Reference List:

  • Duncanmec (Pty) Limited v Gaylard N.O. and Others [2018] ZACC 29.

  • Rustenburg Platinum Mine v SAEWA obo BESTER and Others [2018] ZACC 13.

  • Sidumo v Rustenburg Platinum Mines Ltd 2008 2 SA 24 (CC).

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

UNDERSTANDING THE FUNCTIONS OF THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION

UNDERSTANDING THE FUNCTIONS OF THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION

I have a dispute which has been referred to the CCMA. How does the process work?

The Commission for Conciliation, Mediation and Arbitration (“CCMA”) is a state-funded institution which acts as the centrepiece of the statutory dispute resolution system in the employment sphere. The CCMA, however, operates independently from the state.

A dispute is referred to the CCMA within 30 days of the date when the dispute arose. When a dispute is referred to the CCMA, the first step in the process is that the Commissioner (the objective party presiding over the matter), who will act as a conciliator, assists the parties to reach a mutually agreed upon outcome. The conciliator cannot make any binding determinations during this process. Therefore, there is no obligation on the parties to accept the suggestions of the conciliator. What is also important to note is that the proceedings are confidential and conducted on a “without prejudice” basis, therefore, whatever is said during the said proceedings cannot be used against either party later in the process. Conciliation is not defined in the Labour Relations Act 66 of 1995 (“LRA”), however, in practice, the Commissioners tend to make use of mediation, conducting a fact-finding exercise, subsequently making a recommendation to the parties, which is regarded as an advisory arbitration award.

After conciliation has failed, the Commissioner will issue a certificate stating that the dispute remains unresolved after conciliation proceedings have been conducted (certificate of outcome). The referring party will then have the option to refer the matter to arbitration by completing an LRA Form 7.13 and serving it on all the relevant parties, including the CCMA, within 90 days after the date on which the certificate of outcome was issued. The director of the CCMA may direct that the parties conduct a pre-arbitration conference. The purpose of the said conference is so that the parties can simplify the matter and clearly define what the dispute is.

Arbitration is essentially a hearing based on the merits of the dispute. The arbitrator will give all the parties an opportunity to prove and argue their case. After the arbitrator has heard the parties’ cases, the arbitrator must make a finding, which any reasonable decision-maker could come to based on the available evidence. Reasons for the arbitrator’s decision may be provided. The arbitrator’s decision is final and binding on the parties, subject to a review application in the Labour Court. The arbitrator may also make an order as to costs in accordance with the CCMA rules.

It should also be noted that in 2002, amendments to the LRA were introduced, which also provide for what is now known as “con-arb”. What this entails is that the Commissioner will have to commence arbitration immediately after conciliation was found to be unsuccessful. However, a party to the proceedings may object to con-arb, whereafter the procedure as discussed above will then follow in the alternative.

When a dispute is referred to the CCMA, the first step in the process is that the Commissioner will attempt to settle the matter by way of conciliation which might include mediation, conducting a fact-finding exercise, subsequently making a recommendation to the parties, which is regarded as an advisory arbitration award. When the dispute remains unresolved, the matter will then be finalised on arbitration.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

POPI AND YOUR PAYROLL

POPI AND YOUR PAYROLL

The requirements of the POPI Act stipulates that an entity is required to take reasonable measures of a technical, as well as organisational nature, to ensure the adequate safeguarding of personal information. Personal Information, according to the Protection of Personal Information Act, 2013 includes the following:

  1. Information relating to the following of a person:

  • Race / nationality / ethnic / social origin / colour

  • Gender / sex

  • Pregnancy

  • Marital status

  • Sexual orientation

  • Age

  • Physical or mental health / well-being / disability

  • Religion / conscience / belief

  • Culture/language

  • Birth

  1. Education, medical, criminal, employment or financial history of a person

  2. Identifying number, email address, telephone and physical address, location information, online identifier

  3. Biometric information

  4. Personal opinions, views or preferences

  5. Explicitly or implicitly private or confidential correspondence

  6. Views of others about that person

  7. Name, if it appears together with other personal information about that person or if the name would reveal information about that person

Personal information may only be processed (collected, stored, received, organised etc.) if the following conditions are complied with:

  1. Accountability

All the conditions below must be complied with.

  1. Processing

Personal information may only be processed if the processing is lawful and in a reasonable manner which does not infringe the privacy of the data subject

  • Consents

  • Necessary to carry out a contract to which the data subject is a party

  • Obligation imposed by law

  • Protects legitimate interest of data subject

  • Necessary for a proper performance by a public body

  • Processing is necessary for pursuing the legitimate interests of the responsible party or of a third party to whom the information is supplied

Information must be collected directly from the data subject unless the information is obtained from a public record, then the data subject consented would not prejudice a legitimate interest of the data subject or if the collection is necessary in terms of a law.

Employers must obtain the employee’s consent for their personal information to be collected and used. They must be aware of the third parties (or other individuals) who might have access to it.

  1. Purpose Specification

Personal information must be collected for a specific, defined and lawful purpose related to a function or activity of the responsible party.

Records of information must not be retained for a longer period than is necessary. If it is kept for research, statistical or historical purposes, then it can be kept for longer if there are adequate safeguards in place from the records being used for other purposes.

The responsible party (the employer) must ensure that safeguards are in place to protect the data from being used for other purposes. Employees obtaining these types of personal information of other employees should have a clause in their employment contracts dealing with confidentiality.

  1. Further Processing Limitation

Further processing of personal information must be in accordance or compatible for the purpose it was collected for (see Section 15). It will not be incompatible if the data subject consents or the information is used for historical, statistical or research purposes and the responsible party ensures that the further processing is carried out solely for such purpose and will not be published in an identifiable form.

The employer must obtain the employee’s consent if further processing takes place and it is not compatible with the reason it was collected for.

  1. Information Quality

A responsible party must take steps to ensure the information is accurate, complete and not misleading.

  1. Openness

The data subject (employee) must be aware of the information being collected, or if information is not collected from the data subject, the source where it is collected from, the purpose for the collection etc. unless the data subject consents to the non-compliance. The responsible party must take reasonable steps to ensure that the data subject is informed.

If personal information of the employee is collected by a third party via the employer, the employee needs to be aware of it unless the employee consents to non-compliance.

  1. Security Safeguards

The responsible party must ensure the integrity and confidentiality of the information in its possession or under its control by taking reasonable and appropriate measures to prevent loss or damage to personal information and unlawful processing of information.

Anyone processing personal information on behalf of a responsible party may not disclose the information.

Data subjects must be notified if personal information has been accessed or acquired by an unauthorised person (or the responsible party has reasonable grounds to believe so).

The employer or third party should ensure that employee data is treated as confidential information. Our suggestion would be to include a confidentiality clause in the employment contracts. Passwords must also be set up on the systems.

  1. Access to personal information

A data subject (employee) has a right to request access to personal information, also to correct or delete it.

***Although financial information is not specifically dealt with in the above mentioned Protection of Personal Information Act, according to the Basic Conditions of Employment Act, it is an offence for any person to disclose information which that person acquired while exercising or performing any power or duty in terms of this Act and which relates to the financial or business affairs of any other person, except if the information is disclosed in compliance with the provisions of any law..***

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)