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One of the most asked questions of people inspired by my talks, and I’m sure other people’s talks on mediation is – how do I become a mediator? Perhaps this is an easy question to answer – and I will do my best to do so in this guide. However, a more critical question to ask is, whether you can consider mediation as a profession and whether you will make a living as a mediator? Being inspired by the purpose and method of mediation is one thing that is guaranteed, the second thing that is equally guaranteed is that you will find a bucket load of service providers wanting to train you and accredit you as a mediator – but what is not guaranteed is making a career and, more importantly, a living from mediation. In fact, at present, it is more likely that you are guaranteed to become an inspired, believer, and competently trained mediator with good accreditations but with little or no work. Tip 1: Plan your career path as a mediator Mediation is more likely an ancillary skill or offering to what you currently doing. So don’t give up your job as a lawyer, priest, or psychologist. View mediation as something that you will endeavor to grow into a profession over time. Having said this –there are panels of mediators created by virtue of legislation that provide a steady stream of work. A clear example is the Labour Relations Act , which has established the CCMA and provides both compulsory mediation and arbitration services. The CCMA is by far the largest dispute resolution agency in the country and in Africa. So if you are interested in an area of specialty like labour law and want to practice as a full-time mediator and arbitrator or even part-time but with more regular work – then apply to the CCMA when they advertise positions. Click here for commissioner positions that are available. Rule 41A of the High Court and the emphasis on mediation by some judge presidents ( Gauteng as an example ) to assist in reducing the ever-increasing case backlog (close to 6 years before a civil trial date), and a possibility of a new mediation law creates an opportunity for more work. In addition, there are several ombuds that have been created through legislation which provides for voluntary arrangements to mediate matters in particular sectors and areas. Tip 2: Get trained as a mediator on a quality course There is a steady growth of mediation work, and it is quite important to obtain good quality mediation training. Yet again, you must make a choice, do you want to practice as labour mediator, divorce mediator, specialised mediator and civil court mediator or a commercial mediator? Training providers and standards are currently not regulated by legislation. DISAC has been established to voluntarily regulate the standards of training in civil mediation. NABFAM does the same for family mediation and the CCMA establishes its own criteria for its training in labour mediation. At present, the CCMA, along with some universities, has piloted a certificate program that is of excellent quality. It is now possible to acquire your training as a CCMA commissioner through a university and then apply to the CCMA when positions are available. The university programs are a joint initiative and will be recognized training for the CCMA, without requiring additional in-house training. Click here for the Wits Law School, Mandela Institute course. The standards applied by DISAC and NABFAM are internationally recognized and have slowly been accepted as the standard for mediation training through various ways by the government. Leading service providers have adopted the standards developed by DISAC. The potential for regulated standards exists with the proposed mediation law. Thus if you are looking for mediation training, make sure it complies with a quality standard that will be recognized. Tip 3 – Choose where you get trained as a mediator carefully The more expensive training programs usually spend resources on individual coaching and assessments. They also provide opportunities to acquire international accreditation. For example, Conflict Dynamics training will have individual coaching and assessments by senior experienced mediators and assessors. You could also apply to be accredited as a CEDR (UK) mediator . The CEDR accreditation is an internationally recognized accreditation in mediation. Universities such as the Mandela Institute at Wits law school offer a certificate program in civil mediation that has an effective assessment model, which provides individual coaching and assessment. This offers the advantage of compliance with the South African and international standards and certification by a prestigious university. It, however, does not allow for international accreditation. This program will however most likely be offered at other universities and recognized by the Department of Justice . The LEAD mediation-training program is effective but provides less individual coaching and a simplified assessment model. The course is affordable but should not be valued on its price as Lead and the Law Society subsidize it. DISAC however, has provisionally accredited the Lead civil mediation course and the NABFAM Lead Divorce mediation course. There are a number of other courses on offer for prices that are far below the market – be careful if they have no accreditation and always check if they meet local standards. Also please check on the faculty that present the course and obtain references from past attendees. You don’t want to be left with an expensive certificate that can only be used as scrap paper. Tip 4 – Get connected to get work The reality is that mediation is a developing profession in South Africa. It does not provide an abundance of work. The best way to try to get work is to be appointed to bodies such as the CCMA and hopefully the civil High Courts. These bodies provide a steady stream of work at a fair rate. However, they are often limited to a field of work. Alternatively, set up your own business and pursue work for mediation. Lastly spread the word and sell mediation where appropriate to family, friends, colleagues, and clients. Most importantly gain experience even if you offer your services at a reduced cost or for free. Ebrahim Patelia

What happens in the case of labour disputes under lockdown? For those employers that have qualified as essential services , will your employees be permitted to lawfully strike whilst the lockdown remains in place? Employees across the sectors have threatened to strike as a result of a lack of Personal Protective Equipment (“PPE”) and wage negotiations. When will these strikes be lawful and why should facilitated negotiations or mediation be relied upon to resolve employer-employee disputes? 1. What is the right to strike? The right to strike is protected by the Constitution and the Labour Relations Act (“LRA”). According to the latter Act, a strike is defined as: “The partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee…” 2. When is a strike lawful? In order to constitute a lawful or protected strike the following requirements must be fulfilled as per section 64 of the LRA: "The dispute between the employer and employee must first be referred to a Bargaining Council registered within the scope and area of the industry and accredited or the Commission for Conciliation, Mediation, and Arbitration. A certificate must be issued by the body indicating that the dispute remains unresolved 30 days have passed since the referral of the dispute to either of these bodies (or if the parties agree to extend the 30 day period it passes there is no certificate required)." The employer must be provided with 48 hours’ notice of the strike in the private sector, and 7 days in the public sector. 3. What is an employer’s right to lockout ? The LRA defines an employer’s right to lock-out as the following: “The exclusion by an employer of employees from the employer’s workplace, for the purpose of compelling the employees to accept a demand in respect of any matter of mutual interest between employer and employee, whether or not the employer breaches those employees’ contracts of employment in the course of or for the purpose of that exclusion.” Importantly, a bargaining council or Commission for Conciliation, Mediation, and Arbitration must conciliate the dispute. If the dispute is unresolved a certificate must be issued. 4. What does the Disaster Management Regulations state? The Disaster Management Regulations , issued in terms of the Disaster Management Act, forbids the gathering of more than 100 people. While a strike may be considered lawful according to the LRA, it may become unlawful in terms of these Regulations. Persons found acting contrary to the Regulations may face the imposition of a fine and/or imprisonment. 5. Is striking under lockdown lawful? If the strike is lawful under the LRA, it may well be lawful under lockdown provided the employees striking do not exceed the amount of 100 persons. Alternatively, employees may choose to strike by remaining at home (“stay-away”) or implementing a “go-slow”. 6. Can essential workers strike? According to the Labour Relations Act, essential services are those that deal with anything that would endanger the life of personal safety or health of the whole or any part of the population. Employees belonging to this category of services are not permitted to strike. Such disputes must be referred for conciliation and if that fails to compulsory arbitration. The Labour Relations Act has established the Essential Services Committee (ESC), which determines whether or not services should qualify as essential. While the Disaster Management Regulations has distinguished between essential and non-essential services, it can be argued that essential services that have not been classified as such by the ESC are allowed to strike. The consequences of such a strike however during the lockdown period would be disastrous to the health and safety of the country. It would thus be interesting to observe any potential decision on this matter by the CCMA or Labour Court. 7. Consequences of a protected strike Employees participating in a protected strike are protected from dismissal. If an employee is dismissed, the dismissal will be automatically unfair and the employee has the right to refer the matter to the Labour Court. An employer does not have an obligation to pay employees on strike and may employ replacements to fulfill the striking employees’ work. However, should the employees’ accommodation and food form a part of their wages then the employer bears the duty to continue providing this. 8. What role can mediation play? At a time whereby the Labour Court, Bargaining Councils, and the Commission for Conciliation, Mediation, and Arbitration are operating at minimal hours and facing a backlog of cases, it is crucial for employers and employers to explore other options. Facilitated negotiations using elements of mediation and conducted remotely is an essential tool for minimizing risks, and is a viable solution to solving disputes between employers and employees as a result of its functional, independent, cost-effective and expeditious process. How can Mediateworks Assist? Mediate Works has a diverse panel of highly experienced experts from enquiry chairpersons, investigators, facilitators, mediators, counselors, and lawyers to assist. We have conducted complex facilitation of mutual interest negotiation work and mediated a range of complex disputes. We have the experience, a track record of independence, and a phone call away. We will set up the remote facility, ensure that all data is captured correctly, and provide efficient daily reporting. We have adapted our processes to comply with the law, your own internal framework, and the need to comply with the current lockdown regulations. We use secure and efficient online platforms to deliver.

A simple guide for Mediators to use when mediating.

According to the Code of Good Practice on Sexual Harassment , sexual harassment is defined as any unwanted conduct of a sexual nature, where the behaviour is not welcome or mutual. Sexual attention becomes sexual harassment if: The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or The recipient has made it clear that the behaviour is considered offensive; and/or The perpetrator should have known that the behaviour is regarded as unacceptable. Despite the common assumption that policies are put into place to protect employees only, it should be known that anyone can be a victim of sexual harassment in the workplace. A publication by the reputable law firm, Cliffe Decker Hofmeyr further highlights instances where particular conduct will still result in disciplinary action: The conduct does not have to take place on the employer’s property or within working hours in order to constitute disciplinary action, The perpetrator does not have to be the victim’s superior in order for the behaviour to be unwarranted, The act does not have to take place more than once to be considered sexual harassment, and Even more recently with the spread of Covid-19 and employees working from home, sexual harassment can happen virtually. The People With that being said, employers are encouraged to ensure that a safe working environment and open-door policy are implemented where acts of unfair discrimination and workplace conduct are concerned. Author at the Smart Company, Andrew Brooks highlights that there can be no “innocent bystanders” among employees. Brooks highlights that only 17% of victims will issue a formal complaint and while, 69% of these incidents have witnesses. If staff are fearful to speak out due to fear that they may be ostracized or seen as having ‘asked for it, they are less likely to come forward. The witness’s report is crucial in that it raises a question and creates awareness to a possible issue. The relevant bodies become more alert and the perpetrator is forced to either stop their advances or get caught all together. The Process Often, even after having particular conduct brought to light, the matter may be handled poorly. Employees may be brave enough to take the first step however, what happens afterwards is just as important. If the victim feels that their aggressor was not dealt with adequately, it reduces their sense of trust in the organisation and its leadership and undermines the company’s course of action should a similar incident occur. Instituting the relevant procedures such as an early investigation, initiating an enquiry and addressing particular points in a company’s policy are the minimal process requirements when dealing with poor conduct in the workplace. The Policy The redrafting of policies, especially those that deal with issues of unfair discrimination, needs be done more often than not. Companies that leave this chance often stand the risk of only seeing a hole in policies when a dispute arises. When we consider the number of employees working from home or, even the number of staff involved in intimate relationships that later result in cases for sexual harassment; it is important to understand that these issues are constantly evolving. Where there is no clarity on certain behaviours in the workplace, there is only room for error. According to the Code of Good Practice on Sexual Harassment , sexual harassment is defined as any unwanted conduct of a sexual nature, where the behaviour is not welcome or mutual. Sexual attention becomes sexual harassment if: The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or The recipient has made it clear that the behaviour is considered offensive; and/or The perpetrator should have known that the behaviour is regarded as unacceptable. Despite the common assumption that policies are put into place to protect employees only, it should be known that anyone can be a victim of sexual harassment in the workplace. A publication by the reputable law firm, Cliffe Decker Hofmeyr further highlights instances where particular conduct will still result in disciplinary action: The conduct does not have to take place on the employer’s property or within working hours in order to constitute disciplinary action, The perpetrator does not have to be the victim’s superior in order for the behaviour to be unwarranted, The act does not have to take place more than once to be considered sexual harassment, and Even more recently with the spread of Covid-19 and employees working from home, sexual harassment can happen virtually. The People With that being said, employers are encouraged to ensure that a safe working environment and open-door policy are implemented where acts of unfair discrimination and workplace conduct are concerned. Author at the Smart Company, Andrew Brooks highlights that there can be no “innocent bystanders” among employees. Brooks highlights that only 17% of victims will issue a formal complaint and while, 69% of these incidents have witnesses. If staff are fearful to speak out due to fear that they may be ostracized or seen as having ‘asked for it, they are less likely to come forward. The witness’s report is crucial in that it raises a question and creates awareness to a possible issue. The relevant bodies become more alert and the perpetrator is forced to either stop their advances or get caught all together. The Process Often, even after having particular conduct brought to light, the matter may be handled poorly. Employees may be brave enough to take the first step however, what happens afterwards is just as important. If the victim feels that their aggressor was not dealt with adequately, it reduces their sense of trust in the organisation and its leadership and undermines the company’s course of action should a similar incident occur. Instituting the relevant procedures such as an early investigation, initiating an enquiry and addressing particular points in a company’s policy are the minimal process requirements when dealing with poor conduct in the workplace. The Policy The redrafting of policies, especially those that deal with issues of unfair discrimination, needs be done more often than not. Companies that leave this chance often stand the risk of only seeing a hole in policies when a dispute arises. When we consider the number of employees working from home or, even the number of staff involved in intimate relationships that later result in cases for sexual harassment; it is important to understand that these issues are constantly evolving. Where there is no clarity on certain behaviours in the workplace, there is only room for error. How can MW assist? We would like to encourage you to take this time to redraft your company's policies or have them submitted for review. As part of MW’s business advisory services, we offer the drafting of policies and contracts to businesses small and large. We understand the importance of dealing with the issues dealing with the foundation before it becomes an underlying issue in a greater dispute. Our services include, but are not limited to; redrafting internal policies, offering the services of an independent investigator or chairperson for disputes and enquiries, and hosting workshops on a number of issues including; ‘Combating Sexual Harassment in the Workplace”, “Presiding Officer Training”, “Facilitating Negotiations” and more. If you would like to find out more about our services, please contact our offices on 087 150 5283 or send an email to info@mediateworks.com and find out how we can help you.

Protection of Personal Information Act This act applies to the processing and management of personal information. The commencement date of section 1 , Part A of Chapter 5 , section 112 and section 113 was 11 April 2014. The commencement date of the other sections was 1 July 2020 (with the exception of sections 110 and 114(4) . The Act Aims To: Give effect to the constitutional right to privacy; Regulate the manner in which personal information may be processed; Provide persons with rights and remedies to protect their personal information; and Establish voluntary and compulsory measures, including the establishment of an Information Regulator , to ensure respect for and to promote, enforce and fulfil the rights protected by this Act. Result of Non-Compliance: Exposure to unnecessary financial and reputational risks; Adverse media publicity; Negative public perceptions; Fines issued by the Information Regulator; and Civil action by the data subject. Your Rights (as the data subject): To be notified of the collection of your personal information; To be notified that your personal information has been accessed or acquired by an unauthorised person; To establish if another party holds personal information about you, To request access to your personal information; To request the correction, destruction or deletion of your personal information. To object, on reasonable grounds, to the processing of your personal information; To object against the processing of your personal information for purposes of direct marketing (including solicitation of funding) through unsolicited electronic communication; and To institute civil proceedings regarding the alleged interference with the protection of your personal information. Visit popia.co.za/ for more details.

What is a mediator? A mediator is a neutral third party that is appointed to help people resolve a conflict. For example, if a couple wanted to get divorced and would prefer not to incur the cost of lawyers and possibly months of litigation, they would hire a mediator to assist them in their separation. A mediator, unlike a lawyer, does not choose sides or influence the decision of either party. They are simply there to listen and help the parties reach common ground. What does a mediation process entail? Here is a simple recipe to help you understand what mediation entails: An hour or two of your time for a fixed number of sessions. A spoonful of patience when entering into any conflict situation. An open mind and will to listen to the other person. Remember what is important. Mediation helps to preserve relationships. Meet the other person halfway. What are you willing to compromise on so that you can both get what you want? Why choose mediation? Consensual: both parties must agree to a mediation. Affordable: most mediators have a fixed fee for a fixed number of mediation sessions to allow you to plan accordingly. Time Effective: Unlike litigation, mediation does not go on forever. For example, divorce mediation will run for 2 hours a week for about 4-5 weeks. Who can use a mediator? Anyone can make use of a mediator to deal with a conflict. Individuals would use a mediator to resolve a conflict between the two of them. Two companies can use a mediator to come to an agreement with one another. Employers can train their staff on effective methods of mediation and how to resolve a dispute. Are you interested in becoming a mediator? Read this blog article written by our director on how to become a mediator: How can MW assist? MW offers a range of services including but not limited to: Commercial mediation Family mediation Training on how to conduct a mediation If you would like to find out more about our services, please contact our offices on 087 150 5283 or send an email to info@mediateworks.com and find out how we can help you.

In 1994 our nation defied detractors by demonstrating that a country that is committed to principles of open dialogue, reconciliation, and non-racialism can indeed peacefully transition from an oppressive regime to a democratic dispensation. South Africa, unlike many other countries that face historical issues of racial inequity, has entrenched the principles of transformation in legislation such as the Employment Equity Act and Prevention of Unfair Discrimination Act. Considering our past, it made sense that our legislators would try to enact change within our society through the law. However, despite our legislator’s best efforts to address the elephant in the room, it appears that we still struggle within South Africa and the divisive issue of race continues. According to a report from the South African Human Rights Commission in 2017, the percentage of race-related complaints increases annually and reached 69% in 2016/17. While the report may be quite dated, it is difficult to open a newspaper or scroll through social media feeds and not find some story marred by racialism. South Africa may need to re-tool its approach within the employment sector and how it tackles issues that differentiate its citizens. An idea that has been adopted by many international organisations is to tackle the issue of race and diversity head-on. Mark Zuckerberg, Founder, Chairman, and Chief Executive Officer of Facebook: "Frankly, I think [diversity is] our problem to figure out. I think that responsibility rests on us and our companies in the industry to make sure that we get to that. And there's so much research that shows that you need diverse teams to do the best work. So it's important that we do better on diversity, not only because it's the right thing to do for the country and for the people, but because that's the only way we're going to serve our community the best." Organisations such as Facebook focus on how that which makes them different, can also benefit them. Instead of approaching diversity as a bar measure that needs to be reached, it adopts a culture that embraces diversity and what differentiates us, in order to benefit the organisation. The number of studies on the benefits of diverse and inclusive workforces are numerous. The Center for Talent Innovation stated that at firms with diverse leaders, employees reported they were 70% more likely to have captured new markets in the past year and 45% said they were more likely to have improved market share in the past year. Diversity and inclusion differ from transformation and employment equity in one crucial way; while our legislation can mandate transformation through regulation, achieving inclusivity within the workplace requires a cultural change within an organisation. The question is, how does an organisation achieve diversity and inclusion through a cultural change? Organisations around the world have adopted the approach of training their employees regularly on diversity and inclusion. These training sessions focus on conscientizing employees of the cultural biases that exist within organisations and how they can be addressed. It also demonstrates the practices that can be implemented to ensure that the organisation adopts an inclusive approach when conducting business. By implementing continuous awareness campaigns that employees buy into and believe in, organisations can see a marked improvement in the output of their employees. Part of this process is to develop a diversity strategy and purposefully activate the road to inclusivity. We were recently afforded the privilege to facilitate a process of diversity and inclusion for a large multinational. The journey over the two days of facilitation was transformative for the participants. Some of the participants' comments are mentioned below: “The Diversity and Inclusion workshop is no regular ‘diversity’ course. This is a journey shared with colleagues and experienced facilitators, in a safe space, that allows you to gain a higher state of awareness of the value of diversity and inclusion in society and business.” “The course really opens up your mind and makes you think introspectively about your possible biases. It helps you understand more people and gives you a great platform to then start new thinking processes.” “This course is brilliant. It allows you to get into the heart and thought processes of people of different diversities and also helps you to introspect on your own views. It guides us really and helps all in seeing the importance of creating an inclusive environment in our workplaces. I highly recommend it.” How can MW assist? MW has a diverse panel of highly experienced experts from enquiry chairpersons, investigators, facilitators, mediators, counselors, and lawyers to assist. Over the past year, we have successfully assisted a number of companies to train hundreds of employees on Diversity and Inclusion in the workplace. MW conducts processes both online and in-person at an affordable rate. If you would like to find out more about diversity and inclusion training, please contact our offices. One of our consultants would be glad to come to your organisation to give a brief presentation on how the training can be implemented so that you have optimal impact on the operation of the business. Our training approach is designed to ensure that real and measurable change is achieved. We have adapted our processes to comply with the law, your disciplinary framework, and the need to comply with the current lockdown regulations. We use secure and efficient online platforms to deliver. Send an email to info@mediateworks.com and find out how we can help you.

What should employers know about retrenchment? Once a possibility at the beginning of lockdown, retrenchment has now become the new reality for many businesses. Retrenchment should always be a last resort, however, businesses on the cusp of folding have little option but to resort to this complicated process. Businesses must prepare themselves for the worst-case scenario and it is crucial that they comply with the law throughout the retrenchment process. Employers cannot afford the costly consequences of unfair dismissal claims. Retrenchment is a type of dismissal that is through no fault of the employee. Retrenchment occurs where businesses experiencing economic pressure may need to let some of their employees go in order to increase profits or reduce losses. Steps in the Retrenchment Process 1. Operational Requirements of the Employee Employees may be retrenched for operational requirements, which are requirements based on the economic, technological, structural, or similar needs of an employer. 2. Joint Consensus Seeking Process The employee must engage with employees and their representatives in a joint consensus-seekin g process on appropriate measures; to avoid dismissals, to minimize the number of dismissals, to change the timing of the dismissals, and to mitigate the adverse effects of the dismissals, the method for selecting the employees to be dismissed, and the severance pay for dismissed employees. Those Involved in the Consultation Process: The employer must consult with one of the following parties: any person whom the employer is required to consult in terms of a collective agreement ; if there is no collective agreement that requires consultation; a workplace forum , if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; and any registered trade union whose members are likely to be affected by the proposed dismissals; if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; or if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose. Written Notice Issued to Employees: In terms of section 189(3) of the Labour Relations Act , the employer must provide written notice to the other consulting party inviting it to consult with it and disclose in writing all relevant information, including, but not limited to: the reasons for the proposed dismissals; the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives; the number of employees likely to be affected and the job categories in which they are employed; the proposed method for selecting which employees to dismiss; the time when, or the period during which, the dismissals are likely to take effect; the severance pay proposed; any assistance that the employer proposes to offer to the employees likely to be dismissed; the possibility of the future re-employment of the employees who are dismissed; the number of employees employed by the employer; and the number of employees that the employer has dismissed for reasons based on its operational requirements in the preceding 12 months. The consulting party must be given an opportunity during the consultation to make representations on any of these matters and any other matters relating to the proposed dismissal. The employer must respond to these representations. Alternatives to Dismissal: As retrenchment should always be the last resort, the employee has a duty to consider an alternative such as demotion . Severance Pay: Retrenched employees are entitled to one week’s severance pay for each completed and continuous year of service with the same employer. If an employee unreasonably refuses to accept an offer of employment with the current employer or another employer, the employer is not obligated to pay severance pay. Q&A for Employers on Retrenchment What are the obligations of employers? Because retrenchments are ‘no-fault dismissals’ (i.e. through no fault of the employee), the obligations upon employers are particularly onerous. In addition to ensuring that all possible alternatives are taken before retrenchment, employers must: Have a legitimate reason or cause for dismissal Define the operational requirements that the dismissal was based on Prove that the dismissal was based on a fair procedure in accordance with section 189 of the Labour Relations Act Define the facts upon which the dismissal was made in order to satisfy that it was substantially fair Must the employer issue a written notice to all its employees? Yes. Employees that are likely to be affected are those employees that may be retrenched and others that may experience changes due to the restructuring or the downsizing of the retrenchment. What must the notice contain? The notice must contain the issues relating to the proposed retrenchment and invite the parties to consult with the employer on the retrenchment with the end-goal being to reach a consensus. Do employers have to pay my employers once they are retrenched? Employees are entitled to the following relief upon retrenchment: Severance pay → one week’s pay for each year of service. If the employment contract stipulates a higher amount then this amount must be paid. Leave → If the employee has not taken annual leave, money must be paid that is equal to the number of days not taken off. Additional pay → depends on provisions in the employment contract. For example, a pension. Notice pay Is the employee always entitled to severance pay? No. The employee forfeits their right to severance pay should they unreasonably refuse to accept an alternative offer of employment by the employer. Can the employer retrench employees after lockdown? As South Africa’s economy continues to slide down into a slump, prospects of recovery for businesses appear slim. Post-lockdown, businesses may find that they have little choice but to retrench some of their employees to continue operating. Provided that employers comply with the requirements laid down in the Labour Relations Act, and retrenchments are consequently substantively and procedurally fair, retrenchments may be considered. How can Mediate Works assist? Mediate Works has a diverse panel of highly experienced experts from enquiry chairpersons, investigators, facilitators, mediators, counselors, and lawyers to assist. Ebrahim Patelia has sat as an adjudicator for CSOS for some time and has co-trained a number of the CSOS mediators through Conflict Dynamics . Mediate Works can assist in training employers on the correct retrenchment protocol . MW adapts our processes to comply with the law, your disciplinary framework, and the need to comply with the current lockdown regulations. We use secure and efficient online platforms to deliver in the instance that an on-site visit is not possible. Contact us today on 087 150 5283 or send an email to info@mediateworks.com . To request a quote, click here .

Brief Summary South African workplaces are in desperate need of diversity and inclusion training in the workplace. While overt racism may not be obvious, there are nevertheless great inequality structures and racial discrimination undertones that persist in workplaces. This creates a divisive workforce and undermines the potential South African society can reach. South Africa has one of the most liberal and progressive Constitutions in the world. The Constitution and various laws enacted to give effect to its enshrined rights, provide that all people have the right to equality and dignity in the workplace. The Employment Equity Act (“EEA”) 55 of 1998 recognises that structural racism exists in the workplace and due to Apartheid, there inequalities in the employment and labour sector. The EEA attempts to rectify this by eradicating unfair discrimination faced by employees. However, despite the law’s intervention, inequality and discrimination in the workplace continues to exist. Racial bias and racial discrimination plague workplaces to the detriment of both employees and employers. This is not a South African problem; the World Economic Forum is partnering for racial justice in business , in a recent project, " A global coalition for organisations to use their power to create just and equitable workplaces for professionals that are under-represented racially and ethnically. " According to the World Economic Forum : “Racism and racial bias is manifested in current social, economic and political disenfranchisement of historically marginalized and minority ethnic groups such as the lack of opportunities, lower socio-economic status, higher unemployment and the racial wealth gap. Professionals of colour and minority ethnic backgrounds continue to face racial injustice and inequity in the workplace, and they have been severely underrepresented in leadership.” Certainly, South Africa’s situation is unique in that racial discrimination and racial bias in the workplace is targeted against a majority in this country; this is deeply rooted in our past. That is not to say that non-POC do not experience feelings of exclusion and bias in the workplace. While some companies choose to address issues of bias, racial discrimination, and exclusion, with policies of diversity and inclusion (“D&I”), it is not mandatory to offer training to employees on D&I in South African law. But should it be a requirement of the law? What do the words ‘diversity,’ ‘inclusion’ and ‘transformation’ entail? They’re thrown around in companies D&I policies, and that’s where they’re left. Employees seldom receive detailed training on D&I in the workplace. Issues of exclusion, bias, discrimination, and race are left to ferment; it is taken for granted that employees know how to interact with other employees who are different from them. The reality paints a very different picture: language, culture, and religion all act as barriers to open and honest communication and interaction. Instead of these issues being raised to management’s attention and openly addressed by companies, they are swept under the carpet. Employee training on D&I should not only include employees in the Human Resources department and all employees occupying managerial and leadership positions. A transformative workplace includes a buy-in from all in the workplace, the training should include a consultative process whereby issues faced by employees are raised and addressed by management. When considering the long-lasting and far-reaching consequences of toxic workplaces on employees’ mental wellbeing, career progression, personal growth and companies’ productivity, culture, and reputation, it makes sense for employee training on D&I policies to become the norm rather than the anomaly in companies and organisations. How can MW assist? MW has a diverse panel of highly experienced experts from enquiry chairpersons, investigators, facilitators, mediators, counselors and lawyers to assist. Over the past year, we have sucessfully assisted a number of companies to train hundreds of employees on Diversity and Inclusion in the workplace. MW conducts processes both online and in-person at an affordable rate We have adapted our processes to comply with the law, your disciplinary framework and the need to comply with the current lockdown regulations. We use secure and efficient online platforms to deliver. Send an email to info@mediateworks.com and find out how we can help you.

Brief Summary Miss South Africa, Shudufhadzo Musida, is the recent victim of cyberbullying. Social media comments suggest South Africa has a long road ahead of addressing gender-based violence and cyberbullying in society. In January 2019, Miss South Africa posted photos of herself wearing a bikini. Critics chastised her for failing to consider more important issues currently being faced by society. The Miss South Africa Organisation described the attacks against Ms Musida as cyberbullying. What does South African law say about cyberbullying and is there any recourse? No precise definition or legislation in respect of cyberbullying currently exists in South African law. However, cyberbullying can best be described as bullying or harassment, by electronic means such as a cellphone or laptop. It is “repeated behaviour, aimed at scaring, angering, or shaming those who are targeted" (UNICEF). Cyberbullying can take the forms of: Messages; Comments on social media platforms such as Twitter, Instagram, Facebook, and TikTok; Gaming platforms; Websites; Emails; Phone Calls; Video Chats; Voicenotes; Images; Videos, etc. Further clarification on cyberbullying can be found in the Protection from Harassment Act 17 of 2011. Therein, cyberbullying is described as harassment which includes “directly or indirectly engaging in conduct that the respondent knows or ought to know causes harm or inspires the reasonable belief that harm may be caused to the complainant or, a related person by unreasonably: Following, watching, pursuing or, accosting of the complainant or a related person or, loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be; Engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; or Sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to or brought to the attention of, the complainant or a related person. Recourse Victims of cyberbullying may rely on remedies in Civil and/or Criminal law. In terms of Civil Law, individuals may apply for a Protection Order in the Magistrate Court located nearest to the victim’s place of residence. An application form is provided at the Magistrate Court or can be found online here. In terms of Criminal Law, perpetrators may be charged with the following: Criminal injustice, which is the unlawful, intentional and serious violation of the dignity or privacy of another person; and Criminal defamation, which is the unlawful and intentional publishment of a matter concerning another person that seriously injures his or her reputation With the dominating role technology plays in everyday life, cyberbullying is certainly an area of law in need of development in the form of legislation and stricter regulation.

We start 2021 as we should, with hope. The positive desire of expected good is fundamental to the human existence. We have a lot to be worried about with the uncertainties of COVID-19; global-political posturing and financial destruction of the poorest of our communities. It is at the start of a new year where resolutions are often cast as coins flung into a wishing well. Now the flinging of a coin seems useless and, perhaps, the careless flinging of resolutions is pointless. The power of our thoughts and emotions is immense – it is the master of our actions. Feeling hopeless is feeling powerless to act. Hope is, however, built with careful thought and planning -this expands the boundaries of our opportunities. On the other hand, our emotions are stubborn and resist any attempt to move too quickly to rational thought. Emotions must be acknowledged and given their space, to allow for clearer rational thinking. We need space to think and analyse our circumstances, strengths, weaknesses, and opportunities. This creates an opportunity for us to build a rational plan based on realistic goals. This self-reflective journey and rational planning create the opportunity to tamper our thoughts and emotions. It starts the journey of recovery. It need not be a complete or fail-safe plan. Good plans evolve by applying prudent analysis and having the flexibility to change and adapt where required. Acting on our plans with our objective in mind allows for movement away from our current circumstances. Perhaps a critical driver of change is movement. To get any where we need to move, and we need to act. Even if we don’t get to the right place at first, it is only action and movement that allows us to move in a different path. We need to surround ourselves on our journey of hope with people that can guide us and provide us with useful feedback. Feedback, if constructive, helps us to adapt faster, checks our thinking and allows us to consider options that we may not have thought about. At MW we enter the year with many goals, and we will achieve them because, we have hope. Peace and Love Ebrahim Patelia