Workers at Hendon Mining Supplies at Wadeville on the East Rand have tested the law on how to deal with racist supervisors. Norma Craven , one of Numsa's legal eagles, reports.
The workers tell us that their supervisor called some of them “baboonsâ€, "bobbejane†and “kaffirs†after they returned from the Cosatu stayaway last year. The workers declared a dispute.
They demanded the dismissal of the supervisor. They referred the matter to conciliation and then issued a strike notice. After about a week of strike action, the employer informed the workers that he would dismiss them if they did not return to work by a certain time.
The legal department launched a temporary interdict which was successful. The employer was interdicted from dismissing the workers until the return date for the matter.
This is the second strike in recent times, where Numsa workers have demanded that a racist manager or supervisor be dismissed.
In both cases the legal department successfully defended workers' right to strike on this demand. Workers do not have to put up with racist attitudes in the workplace. By standing together it is possible to have the old guard removed.
Watch out for:
Regulation of Interception of Communications and Provision of Communication-Related Information Act 2002
This act came into operation recently and could have implications for workers. The act is a very complicated piece of legislation. This is a very superficial explanation of what is in it and how it will affect us.
The act covers both “direct†and “indirect†communication. “direct†refers to oral communication. “indirect†refers to recorded or printed material.
In general no person can intercept, or allow to be intercepted, any communication in the course of its preparation or transmission unless authorised in terms of this act.
The act has two parts which deal with interception in the employment context. Any person, and that includes an employer, may intercept a message if he or she is a party to it. There is no definition of "party" in the act. In this context it would probably mean the sender, the receiver and anyone to whom the message is copied.
This could mean that where an employer insists that all e-mails be copied to him/her, he/she could then give consent and intercept, if they suspected that e-mails were not being copied to them. The employer probably will however see itself as a principal party because he is the person who pays for the system, provides the hardware and software etc. The court must still test this.
The act also says that any person may intercept any communication if one of the parties to the communication has given prior consent in writing to such interception, (unless it is intercepted for unlawful purposes). For the union this is very important. Prior consent means before the interception.
There is no indication that such interception can be ratified later. However, the employer can argue that if the consent is in the terms and conditions of employment, or in any policy that is attached to terms and conditions of appointment, then this is a cover-all agreement and should allow the employer to intercept anything he wants to. It is blanket permission.
The union however will argue that all of the words in the appropriate section are singular, "any communication, one of the parties to the communication and such communication". Therefore the act should be interpreted to mean that each and every interception would have to be agreed to in writing.
To allow an employer to succeed in this argument would open the door to invasion of privacy. It would mean that any communication, no matter of what private nature, could be intercepted by an employer. An e-mail to a doctor or to a bank or credit organisation, for instance, could be intercepted. Another section of the Act deals with the recording of telephone calls and e-mails.
This interception must be made with the express or implied consent of the "system controller". The system controller as defined in the Act, would be the chief executive officer or the equivalent officer or person duly authorised. In the case of Numsa for example, it would be the General Secretary or a person authorised by him.
There are instances where telephone calls are recorded. For instance often when you call a bank, the call is recorded. This protects the person taking the call and the person making the call. However, the new Act means that such recording could now be for the purpose of investigating or detecting the unauthorised use of that telecommunications system.
The employer could say for instance that he believed the system was being used for pornography as an excuse to intercept completely innocent messages. Another section could mean that an employer could intercept messages or calls to, or from, a confidential telephone service.
This would include, for instance, calls to an Aids Helpline or a helpline which deals with marital problems. This is a gross invasion of privacy. This again has not been tested in court and it may be that the court would also see it as a gross invasion of privacy.
The only requirement on the system controller before recording or intercepting these kinds of communication, is that he must make all reasonable efforts to inform you in advance if he intends to do so.
This could mean that if the system controller sends out a general notice that he intends to monitor the communications systems and no-one objects, then this could be taken as agreement.
Source
Numsa News