Understanding contract jargon

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Disabilities and South African law: Know your rights

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What is harassment?

According to the Employment Equity Act, no 55 of 1998, employees have the right to a safe working environment that does not facilitate harassment or allow harassment to take place. Read about how South African legislation protects you.

What behaviour constitutes harassment?

The Protection from Harassment Act, no 17 of 2011, describes harassment as direct or indirect behaviour that the harasser knows or ought to know will cause psychological, mental, physical or economic harm, or will lead someone to believe that they may be harmed. This includes sexual harassment.

Harassment could include:

  • Unreasonably following or watching someone, or accosting them
  • Unreasonably communicating with or attempting to communicate with someone, whether or not a conversation ensues
  • Unreasonably sending, delivering or leaving communication or packages in places where they will be found by someone. This includes digital channels of communication

Sexual harassment includes:

  • Unwelcome sexual attention that the harasser knows or ought to know is unwelcome
  • Sexual suggestions or behaviour intended to offend, embarrass or humiliate a person
  • The implied or expressed promise of a reward for complying with a sexual request
  • The implied or expressed promise of reprisal for not complying with a sexual request

According to The South African Labour Guide website, examples of both forms of harassment include but are not limited to:

  • Bullying
  • Spreading malicious rumours or insulting someone, particularly on gender, race or disability grounds
  • Ridiculing or degrading someone, picking on them or setting them up to fail
  • Exclusion or victimisation
  • Unfair treatment based on, for example, race, gender, sexual orientation, pregnancy, age, disability, religion, HIV status, etc.
  • Overbearing supervision or other misuses of power or position
  • Unwelcome sexual advances
  • Making threats/comments about job security without foundation
  • Deliberately undermining a competent worker by overloading them with work and constant criticism
  • Preventing individuals progressing by intentionally blocking promotion or training opportunities

What can I do if someone is harassing me?

When it comes to sexual harassment in particular, an employee can choose to resolve the issue in one of 2 ways: informally or by means of a formal complaint. There should be no pressure to accept either option as a resolution.

Informal
It may be possible to take an informal approach as a first step and confront the harasser. Do this to explain that their behaviour is unwelcome, makes you feel uncomfortable and interferes with your work. After doing this, if the harassment continues, you should embark on a formal procedure.

Formal
The procedure for lodging a formal grievance differs from company to company, so it is important to familiarise yourself with your company’s policies. Note that as per legislation, employers and employees are required to make sure that all grievances investigated are conducted in a way that ensures the confidentiality of the persons involved. If evidence of misconduct is apparent, the employer will be required to take disciplinary steps against the accused, which may result in his or her dismissal.

Under the Protection From Harassment Act, it is also possible for victims to apply to a magistrate’s court for a protection order to be issued against the employer or colleague harassing them. The court will investigate the allegations and if it is satisfied that there is evidence of harassment, an interim protection order will be issued. Further investigation will then take place.

What if you didn’t know you were harassing someone?

In a 2018 sexual harassment case, the court explicitly stated that nowhere in the Code of Good Practice on Sexual Harassment does it require the accused employee to have been aware that their conduct was unwanted and offensive to the victim in order for the behaviour to be classified as sexual harassment. This means that the courts will no longer accept the claim that an alleged perpetrator ‘did not know’ they were harassing victims in question.

The information is shared on condition that readers will make their own determination, including seeking advice from a legal professional. E&OE.

References


What does the internet know about me?

Have you ever signed up to an online-shop newsletter just to gain access to the members-only promotions – and then brushed past the terms and conditions? Maybe it’s time you read the small print so you know exactly what you’re getting yourself into.

When you make purchases online for products or services, or even simply visit a website, these websites may collect information about you, referred to as personal information. Depending on the site you’ve visited, this personal information could be anything from your name and ID number to your health information. Personal information is ‘information relating to an identifiable, living, natural person or an existing juristic person,’ says Novation Consulting.

Other data that qualifies as personal information include:

  • Demographic information (such as race, gender, age, education, profession, occupation, income level and marital status)
  • Contact details
  • Financial information
  • Background or historical information
  • Usernames and social media handles
  • Biometric information (related to human characteristics, such as fingerprints)
  • Preferences and opinions
  • Behavioural information
  • Correspondence

While you may not know it, many organisations such as banks, travel companies and supermarkets store data about you. But how did they receive this data and are there rules regarding how they can use it?

How is your personal data collected online?

The Protection of Personal Information Act, 4 of 2013 (POPIA), regulates how companies can collect information about you and in what ways they are allowed to use it. Although the full Act has not come into effect yet, many organisations have already started implementing the regulations.

‘The purpose of the POPIA is to protect the constitutional right to privacy of people by ensuring that personal information is processed in a manner that ensures its confidentiality and that a person’s privacy is respected,’ says Compuscan.

In its White Paper, Novation Consulting states that the general rule is that companies must collect information directly from you and with your consent if they intend to use your details for electronic direct marketing (such as SMS or emails). They’ll also need consent if they intend to pass your details on to another company. Consent usually appears in the form of an opt-in button or when you accept a website’s terms and conditions. However, the above does not apply to physical communication such as telephone calls.

The organisation must, however, clearly state how your information will be used online – for example, entering your physical address will only be used to deliver your goods to you – and whether this usage is justified legally, says Novation Consulting. You should be able to find this in the organisation’s privacy policy.

However, there are some exceptions. Information does not need to be directly obtained from you if:

  • You made your information publicly available online, for example on LinkedIn
  • Your information is available in a public record
  • Collecting your information is crucial for law-enforcement purposes
  • Collecting your information directly is not reasonably practical in the circumstances
  • You consented to the use of another source

If your personal information is obtained by an organisation, POPIA also asserts that you should have access to it and be able to change and delete your own personal information, unless an exception applies.

Why should you care?

It’s important to protect your personal information in order to:

  • Avoid identity theft
  • Keep your financial records safe
  • Maintain a positive reputation online in case prospective employers are researching you
  • Avoid being scammed or robbed
  • Stay in good standing with your insurer

How can I find out what information about me is publicly available online?

The quickest way to check is to do a search for your name, email address or other identifiers on Google and other search engines, says HowStuffWorks, which can help you manage your online reputation.

However, there are data-collection sites and people-finding sites that store your personal information, building profiles from information gleaned across the web. It’s a bit trickier to get your information removed from these sites, but what you can do instead is start cleaning up your social media and other online accounts for any bits of private information other than your name that you may have included. Be sure to check that your settings on any online account are set to maximum privacy.

The key thing to remember is that even if something is advertised as free online, it usually isn’t. It’s up to you to decide whether the personal-information handover fee is worth it.

The information is shared on condition that readers will make their own determination, including seeking advice from a healthcare legal professional. E&OE.

References:


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