Do you like your kids?

Raise your children to be people you not only love but like.

Every parent, no matter their station in life, wants to give their children the best they can, and those who have the means to do so often do. But there’s a fine line between giving your children what they need to grow up to become mature, responsible adults who will live with purpose and compassion and make a positive contribution to the world and giving them what they want, which can result in their growing up to be self-centred, uncaring and irresponsible.

While all parents love their children, some don’t necessarily like the way their children turn out when they grow up. It is however possible to raise children you not only love but also like. Here, then are a few tips to help you achieve this.

Tip #1

Teach your child the law of cause and effect.

Young, developing minds simply do not grasp the concept of consequences. They will not understand that their actions will have certain results both desirable and undesirable – until someone teaches them this. That’s your job. It’s not their school’s job, the police’s job or the church, mosque or synagogue’s job. It’s your job. And it’s not always a pleasant job. That’s why many parents buckle when it comes to this.

If you allow your child to grow up with no understanding that there are consequences to their actions, you will end up with a child who gets into brushes with authority all the time – firstly at school, then with their employer (if they’re lucky enough to get a job), then possibly with the law – drunk driving, speeding or worse. You really don’t want that, so start early and let your child learn this lesson in the home where it’s a minor issue. They will automatically apply the lesson to everything outside the home and grow into responsible teens and adults.

Tip #2

Teach your child self-control.

Adults who have no self-control – of their emotions, their words and their actions – will not achieve much in life. It takes self-control, the close relative of selfdiscipline, to knuckle down and do what is necessary to succeed in life, whether it be at performing simple tasks as a young child, applying oneself to one studies at school and university and then, later in one’s chosen career.

Your child will not learn self-control on their own unless you teach them how to exercise self-control through example and instruction. Don’t deny them this privilege. It’s a life skill that will stand them in good stead for the whole of their lives.

Tip #3

Ensure your child helps with household chores.

Children think that the world is there to serve them. They will expect their parents to do everything for them around the house. That might make you feel very wanted and needed, but it’s going to wreck your child and turn them into a selfish, demanding human being with no desire to help you or anybody else. Naturally this is something that should be age appropriate – when they’re old enough to start helping, give them something to do. “Take this to mommy/daddy,” is a good start. As they grow older, their tasks will become increasingly complex.

If they grow up learning that life is not all about them and that it’s also about helping and serving others, they will do you proud and, when you’re old and infirm, look after you with loving concern. If you spend your whole life serving them, they will be quite irritated with you when you’re too old to look after yourself (and them) and you’ll be doomed to look to others for the love and support you would like from your child.

In closing

Few parents deliberately set out to raise children who are uncaring and irresponsible, but too many unintentionally end up with children like that. As with good medical practice, prevention is better than cure. It’s far better to raise your children well than have to try to “fix” broken teenagers or adults.

Alan Hosking is the Publisher of HR Future magazine, www.hrfuture.net. He helps leaders acquire new leadership skills to lead into the future, and is an age management and self-mastery coach to senior executives. Alan is the author of best seller What nobody tells a new father, available at amazon.com.

This article was published in the March 2017 issue of HR Future magazine.

Is an immigration audit still necessary in 2017?

Employing foreign nationals without the appropriate documentation to be in the country is a high risk activity.

Almost 16 years ago I wrote an article bearing the headline “Is an immigration audit in the workplace necessary?” or words to that effect.

This article was intended to highlight for HR Directors, HR Managers and HR Future readers the importance of verifying and “auditing” visas of foreign nationals in their employment.

One of the main reasons for highlighting this was not only because it was topical at the time, but also because of the penalties that exist for employers when employing foreign nationals who do not have the appropriate permits/visas. In fact I also wrote about the need to sometimes verify South African Identity Documents.

That article resulted in a deluge of enquires that have not abated over the years, for verification to be done on this basis and indeed for an “immigration audit” to be done in the workplace. Almost 16 years have passed and the topic has in fact become more relevant than what it was at the time of writing that initial article.

In terms of the exposure to potential prosecution of an employer that was remiss in not verifying a work or other visa, the penalties have in fact increased and for repeat offenders jail time became a possibility.

The purpose of this article is not to deal with the consequences for the foreign national bearing a false visa or Identity Document but rather to highlight the plight of an employer. However it is necessary to briefly state that for the foreign national bearing a false or fraudulent document, deportation and prosecution are the options.

Applying for a visa to any country is not a walk in the park. Specifically where one does perhaps not qualify for a skills visa and is desperate to be in the country, then such persons can easily fall prey to unscrupulous agents who make offers and promises of the ease with which they can procure visas. This is where the problem starts!

Once a person has embarked upon the trail of dealing with some of these unscrupulous agents then, regrettably, it is often a trail that cannot be obliterated. With the advent of the 2002 Immigration Act, which came into operation in April 2003, we have thrown open our doors in many ways to highly skilled foreigners to come into the country. It was still however possible for a less skilled person to obtain a general work visa, provided the requirements of advertisement and recruitment had been complied with.

However, with the 2014 Immigration Amendment Act, the Department of Labour came into the picture as a “recommending” broker whether or not a foreign national who did not fall into one of the critical skills categories could apply for a work visa which was largely dependent on whether the Department of Labour would recommend the visa. The Department of Labour has been notoriously inept in this process and generally the outcome is a negative recommendation, most of the time without a proper investigation into the matter.

This new dynamic therefore placed those who did not fall into critical skills categories into the unenviable position of simply not qualifying for a visa.

Many of the applicants for such visas are technically economic migrants, some of whom are in the country on other visas and now simply do not qualify for a visa any longer.

This makes them a prime target for unscrupulous agents.

Of course, none of this could happen without “assistance” from officials within the Department of Home Affairs.

Whilst much has appeared in the media about corruption being stamped out, the fact of the matter is that, while the lower level corrupt officials are being dealt with in some instances, those higher up the chain are not. This is not suggesting any complicity by the Department as a whole but does suggest perhaps an unwillingness to do what’s necessary. A further dynamic, which was introduced into the system in the 2014 amendments to the Immigration Act, was that VFS was initiated as a receiving and dispatching agent for the Department of Home Affairs and ostensibly as a “buffer” between the client/applicant and the Department of Home Affairs. History will judge whether this was a good or bad move.

It is up to the reader to be the judge. But it is important to note that recently investigative TV programme, Carte Blanche, broadcast an exposé of such a scam, which resulted in fraudulent visas being issued with the resultant consequences.

The question now arises as to what the employer should be doing in order to mitigate any fallout that may occur as a result of a potential fraudulent visa in respect of one of their employees.

Section 49 of the Immigration Act and in specific 49 (3) states that “anyone who knowingly employs an illegal foreigner or a foreigner in violation of this Act shall be guilty of an offence and liable on conviction to a fine or imprisonment not exceeding one year, provided that such person’s second conviction of such an offence shall be punishable by imprisonment not exceeding two years or to a fine, and the third or subsequent convictions of such offences by imprisonment not exceeding three years without the option of a fine”.

There are further conditions and this section covers more than just that, but we will confine ourselves to this aspect only for purpose of this article.

The solution to dealing with this and mitigating any fallout is for an employer to be very responsible in their HR practices when seeking to employ or to continue to employ a non-South African employee/worker.

Prudent management of the recruitment process and vetting process should include ascertaining whether the foreign national is indeed possessed of appropriate paper work.

There has been an upswing in the incidence of false and fraudulent visas over the last 12 month period. It is, therefore, essential that employers, HR Directors and HR Managers be vigilant to this fact.

Julian Pokroy is one of South Africa’s leading immigration specialist attorneys, www.immigration.org.za, and currently heads the Law Society of South Africa’s Immigration and Refugee Law Specialist Committee and the Immigration, Nationality and Refugee Law Committee of the Law Society of the Northern Provinces. He is a member of the South African Law Reform Commission Committee.

This article was published in the March 2017 issue of HR Future magazine.

Do you know when a Restraint of Trade agreement is reasonable?

Propriety interest must be worthy of protection in Restraint of Trade agreements.

The Labour Court, in South African Recycling Equipment (Pty) Ltd v Arnaud Henri Leleux and Waste Recall (Pty) Ltd (2014) 25 SALLR 374 (LC), had the opportunity of considering the following important issues:

(a) What is the approach to be adopted when there is a dispute of fact in motion proceedings, so formulated in Plascon-Evans Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) and further elucidated in Thebe Ya Bophelo Health Care Administrators (Pty) Ltd and Others v National Bargaining Council for the Road Freight Industry and Another 2009 (3) SA 187 (W)?
(b) What are the general principles regulating restraint of trade agreements so formulated in Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A)?
(c) What are the principles regulating the respective parties’ onus of proof, in restraint of trade disputes?
(d) What is the test to determine the reasonableness or otherwise of restraint of trade provisions formulated by the appellate division in Basson v Chilwan and Others 1993 (3) SA 742 (A)?
(e) What role does the absence of a proprietary interest deserving protection play in restraint of trade disputes?
(f) What are the very two distinct kinds of proprietary interests worthy of protection so identified in Experian South Africa (Pty) Ltd v Haynes and Another 2013 (1) SA 135 (GSJ)?
(g) When there is a dispute as to whether or not a restraint of trade agreement covers information, is it relevant that such information is in the public domain?
(h) Is it a requirement that the employer must not only show that the employee could potentially have utilised, to its disadvantage, the confidential information but, furthermore, that he had indeed used such information?
(i) What role do the following factors play in disputes based upon restraint of trade agreements:
(i) the absence of patent rights?;
(ii) the absence of a signed and sealed agreement?; and
(iii) a mere idea without anything more, such as implementation?
(j) What is the approach to be adopted when balancing the opposing interests of the employer and employee when considering the enforcement of restraint of trade agreements?
(k) In the scenario where a restraint of trade agreement contains a clause to the effect that “…the employee acknowledges and agrees that the terms of this clause 19 (containing detail of the restraint of trade) are reasonable in all respects and in particular as to the extent, duration and area”, what is the effect of same on determining the reasonableness of such restraint of trade agreement?

Overview

On 13 November 2013, a final order in the following terms was issued:

Restriction in respect of business: trade connections

• the first respondent is interdicted and restrained from carrying on or being interested in, directly or indirectly, the business of waste management, dealing in scrap metal, recycling waste metal and other materials and the supply of waste recycling equipment for a period of two years from 25 May 2013 for the whole of the Republic of South Africa;

Restriction in respect of confidential information: trade secrets

• the first respondent is interdicted and restrained from divulging any confidential information of the applicant he had obtained during his period of employment with the applicant, which information shall include, but will not be limited to, the identity and contact details of the applicant’s customers, suppliers, service providers, pricing and discount structures of the applicant and its suppliers and the identity of the applicant’s trade connections, to any trade rival of the applicant and/or any third party that may have an interest in the information or would benefit from the confidential and proprietary information of the applicant;

Restriction in respect of customers and trade connections

• the first respondent is interdicted and restrained from using any confidential information as set out in paragraph 1.2 hereinabove either directly or indirectly for the purposes of canvassing the applicant’s customers and/or trade connections or soliciting the business of the applicant’s customers or trade connections; and
• the first respondent is interdicted and restrained from soliciting or seeking any business whatsoever from any person, firm or company who was a customer of the applicant during his term of employment.

The applicant only sought an order against the first respondent (the employee).

Pertinent facts of the case

Business of applicant

The applicant operates in the scrap recycling and processing market in the Republic of South Africa and parts of Africa.

It specialises in the import, distribution and sales of general and sophisticated scrap recycling equipment.

It has interests in the general waste recycling market, and operates a waste recycling yard in Cape Town and a cable granulation plant in Kwazulu-Natal.

Significantly, the applicant recycles waste on behalf of the South African National Defence Force and BHP Billiton.

According to the applicant’s director and acting chief executive officer, Robert McClelland (“McClelland”), the company was registered in 2007 and within a year, became one of the leading suppliers of recycling equipment and plant to South Africa’s recycling market.

It has preferred supplier agreements with international recycling equipment brand leaders such as Guidetti and Sierra.

Process to separate plastic and foil used in food packaging

McClelland further stated that the applicant was set to pioneer a process in South Africa to separate plastic and foil used in food packaging.

He lamented the fact that the employee, with whom he has been friends since 2007 had hijacked this idea, and was pursuing it under the applicant’s competitor, the second respondent (“Waste Recall”).

Employee’s employment

The employee had joined the applicant in 2008 in a sales capacity. On the employee’s own version, his further knowledge and experience in the recycling industry was gained largely whilst performing his duties and responsibilities at the applicant and, to some extent, directly from McClelland.

No prior knowledge of industry or applicant’s business before employment

McClelland’s contention was that, when the employee joined the applicant, he had no knowledge or experience of the recycling industry or of a business like the applicant’s as he was a professional diver at the time.

McClelland had taught the employee the trade, introduced him to the market leaders and suppliers and trade connections of the applicant, the major role players in the South African and African scrap recycling industry, and had developed him into a proficient sales person.

The employee had worked at the applicant for two distinct periods. The first was between 2008 to November 2012, and the second between February 2013 to May 2013. During the currency of the first period of employment, the parties had signed a contract of employment in November 2011 which, inter alia, confirmed the employee’s position as sales director.

His responsibilities entailed developing a business plan and sales strategy, preparing an action plan for effective research of new prospects and sales leads, import of equipment, initiate action plan to penetrate markets, maintain regular contact with the client base via email, phone and personal visits, development and implementation of marketing plan, control expenses and stay within budget guidelines, maintain records of quotes and record sales and activities of the sales team.

The employee had resigned in November 2012 in order to go back into the diving industry but his sojourn into that area was short- lived.

He came back and continued to work for the applicant in December 2012 as head of its sales staff, until his final resignation in May 2013.

Restraint of trade contained in employment contract

Clause 19 of the contract of employment entered into between the applicant and the employee provides that:

“19.1 The employee, or his agent, shall not at any time during his employment with the employer, nor within three (3) years after he shall cease to be employed by the employer:
19.1.1 directly or indirectly use know-how, products, which belong to the employer, its associates or its clients, or have been developed by the employer, its associates or its clients for any purpose whatsoever other than normal company business.
19.2 The employee shall not, without the express written consent of the directors of the employer, at any time during his employment with the employer, nor within three (3) years after he shall cease to be employed by the employer:
19.2.1 be interested or engaged whether as a proprietor, partner, director, shareholder, employee, member of a syndicate or otherwise howsoever, and whether directly or indirectly in any business, form or undertaking which conducts the business of waste management as dealers in scrap metals and recycling waste metal and materials within the Republic of South Africa;
19.2.2 be employed by a firm or company who was a customer of the employer during the term of his employment and with whom he was directly involved whether in the course and scope of this employer with the employer or otherwise;
19.2.3 solicit or seek to obtain orders in respect of products or services similar to those marketed by the employer from any person, firm or company who was a customer of the employer during the terms of his appointment; and
19.2.4 the employee acknowledges and agrees that the terms of this clause 19 are reasonable in all respects and in particular as to the extent duration and area.”

Employee’s arguments

The employee’s contention was that the restraint clause was not enforceable on four grounds.

These were that:

• there was an agreement between the parties for him to pursue his intended business venture, which agreement was struck with the directors of the applicant;
• the applicant did not have a protectable interest;
• the first respondent’s venture does not breach the restraint (if it is found to be enforceable); and
• the right to be economically active and to compete in a free market (with no unfair advantage at the expense of the applicant, or anybody else).

For the purposes of this article, the consideration of the first argument does not receive any attention, apart from stating the applicable legal position and indicating that the Labour Court rejected this argument.

Findings of the Labour Court

Dispute of facts in motion proceedings

Where there were disputes of facts in motion proceedings, it was trite that such disputes should be resolved in accordance with the test set out in Plascon-Evans Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

The test found further elucidation in Thebe Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National Bargaining Council for the Road Freight Industry and Another 2009 (3) SA 187 (W) at paragraph [19] where the court held that;

“…where an applicant in motion proceedings seeks final relief, and there is no referral to oral evidence, it is the facts as stated by the respondent together with the admitted or undenied facts in the applicants’ founding affidavit which provide the factual basis for the determination, unless the dispute is not real or genuine or the denials in the respondent’s version are bald or uncreditworthy, or the respondent’s version raises such obviously fictitious disputes of fact, or is palpably implausible, or far-fetched or so clearly untenable that the court is justified in rejecting that version on the basis that it obviously stands to be rejected”.

The law relating to agreements

It was further trite that a party, that relied on an agreement, bore the onus of not only proving its existence, but also the parties’ common intention to enter into that agreement and its specific terms (see Cotler v Variety Travel Goods (Pty) Ltd and Others 1974 (3) SA 621 (A)).

It was contended that clause 19.2 of the agreement precluded the employee from competing with the company in the absence of “express written consent of the directors of the employer”.

Having rejected this argument, it followed that the employee’s second stint with the applicant after his first resignation could not be seen to have terminated the first agreement and, more pertinently, to have released him from the restraint clause and the concomitant obligations in that regard.

General principle: restraint of trade agreements enforceable

In Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) at 891 B C, it was held that restraint of trade agreements were enforceable unless, and to the extent that they were contrary to public policy because they imposed an unreasonable restriction on the former employee’s freedom to trade or to work.

Onus of proof

As the labour appeal court in Trevlyn Ball v Bambalela Bolts (Pty) Ltd and Another 2013 (9) BLLR 843 (LAC) at paragraph [13] recently held:

“…The effect of the Magna Alloys decision was to place an onus on the party, sought to be restrained, to prove, on a balance of probabilities, that the restraint was unreasonable (see Magna Alloys: Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA) at paragraph 14 at 498E-499).  However, because the right of a citizen to freely chose a trade, occupation, or profession, is protected in terms of section 22 of the Constitution and a restraint of trade constitutes a limitation of that right, the onus may well be on the party who seeks to enforce the restraint to prove that it is a reasonable, or justifiable limitation of that right of the party sought to be restrained” (see Fidelity Guards Holdings (Pty) Ltd t/a Fidelity Guards v Pearman 2001 (2) SA 853 (SE) at 862; Canon KwaZulu-Natal (Pty) t/a Canon Office Automation v Booth 2005 (3) SA 205 (N).

Test to determine reasonableness

The test for determining the reasonableness or otherwise of the restraint of trade provision was set out in Basson v Chilwan and Others 1993 (3) SA 742 (A) at 767 G-H in the following terms:

Factor 1

• Did the one party have an interest that deserved protection after termination of the agreement?

Factor 2

• If so, was that interest threatened by the other party?

Factor 3

• In that case, did such interest weigh qualitatively and quantitatively against the interest of the other party not to be economically inactive and unproductive?” and

Factor 4

• Was there an aspect of public policy having nothing to do with the relationship between the parties that required that the restraint be maintained or rejected?

Factor 5

In Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA), a fifth factor was considered, that is, whether the restraint went further than was necessary to protect the interest (see also Kwik Kopy (SA) (Pty) Ltd v Van Haarlem and another 1999 (1) SA 472 (W) at 484E ).

Requirements of a final interdict

Since the applicant sought a final order, it had to show:

• a clear right;
• the absence of an alternative remedy; and
• that, if the interdict should not be granted, it would suffer irreparable harm.

Clear right requirement considered with reference to the test for reasonableness

In order to establish a clear right, the court had to consider whether there was an interest deserving of protection.

Once that had been established, the next enquiry would be whether the employee was in a position to threaten those interests.

These interests had then to be weighed up against the interest of the employee to be economically active and productive.

Proprietary interest worthy of protection

Coppin AJA, in Trevlyn Ball, held that a restraint would not be regarded as reasonable and enforceable in the absence of a proprietary interest deserving protection.

This principle was also expressed by Steenkamp J in Continuous Oxygen Suppliers (Pty) Ltd t/a Vital Aire v Meintjes and Another (J 2073/11) [2011] ZALCJHB 150, when it was held that;

“As I pointed out in Esquire Technologies (citation omitted) a restraint is valid if there is a proprietary interest which justifies protection.  Those interests are usually in the nature of trade secrets, know-how, pricing or customer connections.  Therefore, a restraint would be an enforceable restriction on the activities of an employee who (for example) had access to the company’s customers and could use his/her relations with the company’s customers to the advantage of a competitor and to the detriment of the company.”

Different kinds of proprietary interests worthy of protection

In regard to the kinds of interests that could be protected by a restraint covenant, the applicant had referred to Experian South Africa (Pty) Ltd v Haynes and another [2013] (1) SA 135 (GSJ) where Mbha J had stated the following;

“[17] It is well established that the proprietary interests that can be protected by a restraint agreement, are essentially of two kinds, namely:
Trade connections
17.1 The first kind consists of the relationships with customers, potential customers, suppliers and others that go to make up what is compendiously referred to as the ‘trade connection’ of the business, being an important aspect of its incorporeal property known as goodwill;
Trade secrets
17.2 The second kind consists of all confidential matter which is useful for the carrying on of the business and which could therefore be used by a competitor, if disclosed to him, to gain a relative competitive advantage.  Such confidential material is sometimes compendiously referred to as ‘trade secrets’” (see Sibex Engineering Services (Pty) Ltd v Van Wyk and Another 1991 (2) SA 482 (T) at 502D-F).

1. Nampak project: trade connections

From the pleadings and the main submissions made, the crux of what the applicant sought to protect, other than the protection contained in the restraint clause, was its interests in the “Nampak project”.

McClelland’s contention was that the employee had actively developed and pursued a project with Nampak, which was identical to the one that the applicant had initiated and, for that purpose, opened up a line of communication for the acquisition of the same Italian machine that the applicant intended to use.

McClelland had further averred that he had negotiated with Nampak to recycle their tinned products since 2011.

He had made first contact with Nampak and the company was on the verge of concluding a deal where the applicant would recycle Nampak’s waste of hundreds of tons per month.

In pursuance of this Nampak project and its interest therein, the applicant had also send Nampak’s foil and plastic laminated samples overseas to the company supplier, Guidetti, to test on their recycling machinery.

The applicant was also in the process of setting up a recycling plant for this purpose.

Since then, the employee and Waste Recall were in the process of purchasing machinery from Guidetti, which, according to McClelland, was the very same that he had discussed with the employee.

It was this conduct which McClelland contended was in direct competition with the applicant and that the applicant deserved protection against in the light of the restraint clause.

Onus of proof

Mbha J in Experian South Africa had dealt with the question of onus in the following terms;

“The position in our law is, therefore, that a party seeking to enforce a contract in restraint of trade is required only to invoke the restraint agreement and prove a breach thereof.

Thereupon, a party who seeks to avoid the restraint bears the onus to demonstrate on a balance of probabilities, that the restraint agreement is unenforceable because it is unreasonable”.

The employee, in an endeavour to show that the restraint clause was unenforceable, had contended that the applicant was not involved directly in recycling and mainly traded in recycling machinery.

He further contended that the applicant had no plans to be involved in recycling any product.

In regards to the “Nampak project”, the respondent had submitted that the latter had come out clean on his aspirations in that regard and, to his knowledge, the applicant had either not done much in pursuing that project or, alternatively, had abandoned it in view of protracted ongoing negotiations.

It was conceded on behalf of the employee that the idea surrounding that project might have been that of the applicant, but that the latter had done nothing about it.

Conclusion re Nampak project

From the facts, it was the Labour Court’s view that the applicant had not only demonstrated that the employee was in breach of the restraint agreement, but also that it had a proprietary interest, which was worthy of protection.

In effect, it should be concluded that the employee had, contrary to his obligations in terms of the restraint agreement, and shamelessly so, used the know-how of the applicant’s business and its relationships with Guidetti and Nampak to set up and pursue the interests of Waste Recall in direct competition with the applicant.

In the process, he had usurped the applicant’s ideas and initiatives, and abused its goodwill in direct conflict with the provisions of his covenant of restraint.

By all accounts, the applicant is clearly entitled to protection against abuse of its trade connections, as it had become clear, during the employee’s employment and after he had resigned, that he had come into a position where he already had, built his own relationship with the applicant’s trade connections (see also Den Braven SA (Pty) Limited v Pillay and Another 2008 (6) SA 229 (D) at paragraph [6]).

To conclude on the issue of the first kind of proprietary interests as identified by Mbha J in Experian South Africa, it followed that the employee’s role in the applicant over the years in various capacities, had given him access to intricate knowledge of the applicant’s proprietary information.

The first respondent had used this access to information and trade connections built by the applicant to forge a particular relationship with Nampak and suppliers of the applicant, including Guidetti, so that, when he left, he could easily induce these business contacts to follow him to Waste Recall.

2. Trade secrets or information in the public domain

The employee had submitted that the information or documents, that the applicant claimed were confidential, were in the public domain.

Arguments of the employee

Examples of such information included the applicant’s customer list, its supplier agreements with Sierra and Guidetti (the international recycling equipment brand leaders) and minutes of its directors’ meetings.

Furthermore, much of the information about companies (both international and local) in the recycling industry, that was also claimed to be confidential, was readily available over the internet and other publications.

The applicant’s contentions: the applicant’s client base

McClelland’s contention, on the other hand, was that the list of the applicant’s client base, which might be in the public domain, did not refer to contact persons, service level agreements, terms of contract and information pertaining to customer requirements.

A perusal of the customer listing merely showed account numbers and names of customers.

Even if this list were in the public domain, it would not be useful to anyone unless that person understood what those account numbers and other codes meant.

The employee, by virtue of his insight, connections, relationship with those customers and knowledge of the applicant’s workings, was in a position to utilise that list to the disadvantage of the applicant in pursuance of his interests in Waste Recall or any other competitor.

A further point that needed to be made was that the fact that part of this information, which the applicant regarded as confidential and sought to protect, was in the public domain did not imply that the employee was absolved from his obligations in accordance with his restraint clause.

This much was captured by Mbha J in Experian South Africa, when he stated the following;

“….It follows that first respondent’s contention that this information to which he had access whilst employed by the applicant is not confidential cannot be sustained.  In any event, the contention is legally untenable in that it is clear from several reported judgments on this issue, that irrespective of whether or not information is in the public domain, the fact that the first respondent has obtained such information within the context of a confidential relationship means that it in fact is protectable.”

The applicant also intended to protect other information

It further needed to be pointed out that the information pertaining to customers, which the employee alleged to be in the public domain, was not the only information that the applicant sought to protect – these included pricing, foil and laminated samples and the Nampak project.

Onus on the applicant

All that the applicant needed to show in this regard, and which it had succeeded in doing, was that the employee had indeed been in possession of confidential information, and not that he had used it, but only that he could potentially have used it to its disadvantage.

This question became moot in the light of the conclusions reached insofar as the employee’s involvement in the Nampak project was concerned.

The employee and Waste Recall have clearly not wasted any time in usurping the applicant’s initiative and making it their own.

This conduct, in the view of the Labour Court, went against the grain of any form of good faith.

It was gross abuse of the applicant’s goodwill and showed flagrant disregard and disrespect of binding agreements.

The fact that the Nampak project had not been patented nor signed and sealed by the applicant had not implied that it was up for the taking.

To the extent that this project might have been merely an idea, it deserved protection.

It was borne out of the knowledge, expertise and efforts of the applicant.

Conclusion reached by the Labour Court

Any venture into that project, as evident from the conduct of the employee and Waste Recall, as things stand, clearly fell foul of the restraint clause, and there could never be justification for the employee’s conduct, either from a legal or business ethics point of view.

3. Right of the employee not to be economically inactive and unproductive

The employee’s contention was that he had a right to earn a living, that the sale of recycling equipment was the only industry he knew and which he had been part of since 2001, with a break in 2007.

He contended that the restraint could not prevent him from competing with the applicant and from trading with suppliers of recycling machinery that also supplied the applicant, and that he needed to make a living even if it meant competing with the applicant like other companies in the same business.

The employee had submitted that the industry was competitive with very few reputable dealers in equipment in the world to compete, and he had to be free to deal with those suppliers.

The applicant’s contention, on the other hand, was that the employee’s submissions in regard to his right to be economically active amounted to saying that the restraint was too broad to warrant enforcement.

Balancing of opposing interests

In enforcing restraint of trade agreements, the court had to strike a balance between the interests of both the employer and the employee.

Other than constitutional considerations, the balancing act which the court had to undertake in considering the enforceability or otherwise of the restraint of trade was that of having to weigh between avoidance of restricting or even preventing healthy competition and the sanctity of contracts.

Competition considerations versus sanctity of contract

Bearing these considerations in mind, it needed to be stated that, inasmuch as the employee, like any other citizen, had a right. in terms of s22 of the Constitution, to freely choose a trade, occupation, or profession, at the same time he had concomitant obligations in terms of the covenant of restraint which he had willingly entered into.

It could not be correct that his constitutional right gave him the right to go on with his life and to completely ignore his obligations in terms of the restraint agreement.

If every employee were to enter into a restraint of trade agreement, and cried “constitution!” every time they moved on in competition against their ex-employers, such clauses would ultimately be rendered redundant.

In this case, in balancing the employee’s constitutional rights and the rights of the applicant to enforce the restraint, a number of factors had been taken into account.

These included, firstly, the employee’s conduct of breaching the restraint clauses at the time when he was still employed and even after he had left the applicant’s employ.

Secondly, there was no undertaking that the employee would desist from his conduct and show some good faith.

In the light of the above, the Labour Court held the position that the principles relating to the sanctity of contracts outweigh the relevant competition considerations and constitutional imperatives.

Reasonableness of the restraint of trade

Any disputes surrounding the reasonableness of the restraint agreement were resolved further by clause 19.2.4 thereof, which provided that the employee acknowledged and agreed that the terms of clause 19 were reasonable in all respects and, in particular, as to the extent, duration and area.

The Labour Court was further satisfied that the applicant was entitled to final relief as sought.

It had demonstrated a clear right which was being infringed by the employee in having set up and taking a directorship position with Waste Recall in breach of the agreement.

An injury, therefore, had been committed, and continued to be committed, through the employee’s blatant disregard of his obligations in terms of the restraint agreement, and the applicant had no other satisfactory remedy available to it.

Dr Brian van Zyl is a Director of labour law firm Van Zyl Rudd and Associates, www.vanzylrudd.co.za.

This article was published in the March 2017 issue of HR Future magazine.

Become an apple spotter

Follow these steps to make sure your team has no bad apples.

In the 1800s, a number of apple plantations were cultivated in the American state of Missouri. In one year, a total of nine million barrels were transported out of Missouri. The barrels travelled to all parts of America and even as far as Europe, and therefore it was extremely important that the apples stayed fresh and did not get spoiled. Because the apples spent so much time enclosed in barrels, it was extremely important to find and remove any rotten apples to prevent them from spoiling the others. Sociologists use the Apple/Barrel example when explaining how a single person can negatively affect other people in a group and, within a work context, it is vitally important to remember this metaphor and apply it where needed, especially in a small and vibrant workplace or team.

A “Bad Apple”, or an employee who can negatively affect the workplace, can do so in many ways and can cause such significant damage to the business that it may be forced to close down, and therefore cause the other staff to lose their jobs. It is for this reason that employers, management staff and staff in general are encouraged to be wary of the actions of those around them, within the team, as their actions can and will affect them if they allow it.

So what policies can be put in place to remove a “Bad Apple?”

Whistle-blower policy

It is best to set up a means by which an employee can “blow the whistle” on negative things happenings within a team or business, in such a way that it will not negatively affect the whistle blower. It is important for business leaders to keep the whistle-blower anonymous, until such time as a testimony may need to be given.

Anti-theft/misappropriation policy and termination opportunities

When two or more employees are responsible for company property, and the property goes missing, then the cost of replacing the property needs to be divided between the two employees. In the case of a hair salon, a great example would be if a bottle of shampoo had to go missing and none of the responsible staff members know where it has gone. The cost of replacing that stock can be divided between the responsible employees on the basis that they did not effectively carry out their tasks in looking after stock. Please note that, in order for this to be procedurally fair, the staff need to be made aware of the policy beforehand. Companies should seek appropriate legal advice when putting such policies in place, as there are many factors that need to be taken into account.

Another more pro-active means to prevent theft is to eliminate any opportunity for theft. This includes strict stock control, careful handling of money, docket management and strict compliance with price lists.

Disciplinary codes and procedures

A disciplinary code and procedure should be put in place with a clear understanding of what disciplinary action will be taken against an employee for misconduct. A disciplinary code should be communicated to the staff to prevent any confusion and ensure that the staff know of the rules and can be reasonably expected not to break them, as well as what the consequences will be for the infringement of said rule.

Disciplinary procedures need to be followed consistently and in accordance with specific procedures, and should be handled effectively and as a last resort, as they can cause a drop in morale, poor employee development and can be seen as an unfair labour practice.

Pro-active management

Prevention is better than cure, and in this case it relates directly to having an active and effective presence within the business. Do your best to study management and leadership skills, and don’t be afraid to put them in practice. Train new employers as well as managers on effective staff management as well as assist in finding solutions to recurring staff issues.

Along with this, it is also best to do a SWOT analysis of the workplace. This involves determining the Strengths, Weaknesses, Opportunities (for growth) and Threats of the business. Once these have been determined, it will be much easier to find the problems as well as the relevant solutions for them. A business needs frequent and proficient care and attention, if you cannot do it personally, ensure that there are reliable staff who can.

Ridding the barrel of “Bad Apples” ensures that the business or the team is that extra bit closer to reaching its long-term goals, but keeping a “Good Apple” is another important skill all together, which will be discussed in the next issue.

Matt Haddon is the National Recruitment Manager and Labour Consultant at the Employer’s Organisation for Hairdressing, Cosmetology and Beauty, www.eohcb.com.

This article was published in the March 2017 issue of HR Future magazine.

HR Professional: Are you ready for the new world of work?

These six HR technology predictions will be part of your working life in 2020.

Now that 2017 is well under way and most of us have long forgotten our vacation time, it’s a good time to look a little ahead, but not just at what technology trends are predicted for 2017, but rather taking look at what the experts are predicting we can expect HR to be like in the year 2020.

At the HR Tech Fest, Mike Molinaro presented his predictions on what he thought HR would look like, where HR is going and what role technology would play in HR in the year 2020. Although some of these predictions are not ground breaking or bleeding edge, it’s heartening to see that some of the hot topics we have been discussing over the past few years are now actually coming to fruition.

Prediction 1

The first prediction discussed was the consolidation of the burdensome administration tasks that weigh so heavily on the HR team. The prediction is that, no matter which route your organisation will follow, be it through taking advantage of technology to automate these tasks or through outsourcing, the prediction is that administration will be totally consolidated and hopefully a thing of the past. Tied to this, it is predicted that through this consolidation the size of the HR team will shrink, but the function would become more focused on strategic issues.

Prediction 2

The second prediction is centred around robotics, a topic that not too many people are comfortable speaking about, and even less so when you start speaking to HR practitioners. HR, they say, can never be replaced by robots. The term “robots” is used as a general term, and does not necessarily refer to having C3P0 or R2D2 and friends wandering through your offices managing employees!

Automated call centres with built in intelligence is a more likely example.

But the idea here is that it would be the repetitive tasks that will be replaced by robots, not those tasks that require a true human element. These robots will be driven by extremely complex software, which would have built-in intelligence as well as the capability to build on that data base, forming a never ending learning cycle. In the same vein, who would have thought a few years ago that self-driving cars would be one of the main focus areas of car manufacturers? At a plant creating battery powered self-driving cars, it is interesting to note that the ratio between software engineers (programmers) and actual mechanics is five to one.

Prediction 3

The third prediction was on the strategic nature of the HR function. This line of thinking has certainly been a topic of discussion for many years now, and it is enlightening to see that the experts predict that, by 2020, the HR function will be strategic in nature. As Mike Molinaro puts it, “Finally, we sigh, HR will understand the business and how people impact on business. We will accurately predict the future with leading rather than lagging indicators. We won’t be looking at what our turnover was. We will tell people what our turnover is going to be. We won’t tell our management where we sit when it comes to wages against market, we will tell them what the correct timing is to make adjustments in order to keep up with market”.

Prediction 4

In his fourth prediction, Mike Molinaro sees the concept of the HR Specialists re-emerging in the HR fraternity. Over time, the pendulum swung from HR being a team of specialists, each operating in their own specialist silo, to the present time when HR largely operates in more of a generalist Business Partner role, trying to meet all the needs on line management through a small team of HR generalists. But the new specialists of 2020 will have a focus on making decisions based on data rather than gut feel. Big data and analytics will become the new core competency in HR. Start preparing to hire your HRIS Manager.

Prediction 5

The fifth prediction is how HR will need to manage a work force that is mobile and will probably spread across the globe. It is going to be key for HR to plan around managing a workforce residing in the global village. Talent is no longer going to be restricted by distance. Wherever in the world the talent resides, the organisation will need to be in a position to be able to utilise it. If you don’t, your competitors surely will.

Prediction 6

In his sixth and final prediction, Mike Molinaro states that the face of HR is going to change. The HR team is going to start looking more like a good Marketing team. You might ask, “Why?” Well, the Marketing team has evolved over past years, much like we now expect the HR team to evolve. Marketing today is a science, it’s no longer just a “spray and pray” approach, it has become totally targeted in its approach through the use of data analytics.

And the prediction is that the HR team is going to follow this same focused and targeted approach, so when faced with a workforce issue, HR is going to be able to come up with a targeted solution because they are going to understand the data behind the problem.

In summary, the question to ask is, “Are you, as an HR professional, ready for this new world?” Warren Buffett said, “Should you find yourself in a chronically leaking boat, energy devoted to changing vessels is likely to be more productive than energy devoted to patching leaks.”

And I think the true message to HR, is stop fixing the leaks, take the leap, and start taking advantage of what new HR technology brings to the table, to ensure that you are ready for the world we will face in 2020.

Rob Bothma is an HR Systems Industry Specialist at NGA HR, www.ngahr.co.za, a Fellow of the Institute of People Management and past nonexecutive director and Vice President of the IPM, co-author of the 4th Edition of Contemporary Issues in HRM and member of the Executive Board for HR Pulse.

References

· HR Tech Fest 2015
· Mike Molinaro: Top 6 predictions for HR in 2020.
· http://techfestconf.com/hr/aus/blog/hr-technology/6-predictions-for-hr-technology-in-2020/

This article was published in the March 2017 issue of HR Future magazine.

Happy employees make a happy company

Follow these simple steps to nurture a happy, profitable company.

The new-age career has shifted its focus from the consumer to prize the employee. Why? Because the employee’s happiness ultimately determines the fate of the organisation. An employee who hates their job is more likely to slack, to display deviant organisational behaviours and to derail from the ultimate goals of the organisation. On the other end of the spectrum, organisations know that a happy employee means a happy customer, greater innovation and production and a more successful, in other words, more profitable, company.

One of the most sought-after answers of business owners is paired with the questions: “How do I retain my most valuable employees?” and “How do I ensure that employees feel like owners and will expend discretionary effort to make the company successful?” It’s as simple as 1) showing your employee that s/he is valued; and 2) remunerating them fairly (which reaffirms their value). Achieve this balance and productivity will take a turn for the better. Here are some simple steps to follow to make your employees happy and to keep the boat afloat:

1. Introduce flexibility

Flexible work options vary from telecommuting to extended leave time or compressed work weeks. Studies show that the flexibile work model increases productivity between 30% and 60%;
• Having moved into a new century, women are playing dual roles of mother and provider. A more flexible schedule allows for a woman to perform her motherly duties and get her work done;
• A work-life balance has become the new fashion. Being able to work as well as being able to take up a hobby, attend to other important life aspects or to achieve one’s personal goals, has proven to be the key to an employee’s happiness. This, in turn, increases their commitment to work, due to their feelings of fulfilment; and
• WiFi connectivity and modern technology have allowed the possibility for people to do work virtually. By allowing your employees to meet their deadlines independently without dictating their work hours and keeping a watchful eye over them, they feel more capable, independent and trusted, and therefore more likely to reciprocate the treatment with more effort and dedication.

2. Build trust

When employees feel they are trusted in performing their duties, they tend to prove that this trust has not gone unappreciated. It gives them the freedom and confidence to create, innovate and participate in solving problems. They therefore feel valued. This is the key to productivity.

3. Show respect for your employees

Understanding and supporting an employee’s commitments outside of work will ultimately benefit you as, by allowing the employee to feel supported and valued, s/he will reciprocate by means of productivity. The latest research demonstrates that respect and admiration from those around one are the basis of one’s happiness. Money comes second. Understanding and supporting an employee’s external commitments allows you as the employer to discover their unique qualities and skills and therefore foster these.

4. Provide career growth opportunities

One of the key variables to retention is that of growth. Employees need stimulation and a job that allows them to grow. The lack of advancement can result in frustration and boredom, causing employees to become despondent. Participation in mentorship programmes, funding conference attendance or further training can be a great contribution to career advancement. Additionally, you are nurturing your talent, allowing the talent to feel that they are worth something and therefore a more respectable job performance will follow.

5. Provide consistent feedback

Timeous, objective feedback serves as motivation for employees. Generally, people want to know that they are doing well and succeeding at meeting their goals. If they are not, they do appreciate being put on the right path before deviating so far off and producing a mass of unnecessary effort. It also shows that their efforts are not unnoticed.

6. Reward success

Praising and rewarding employees for reaching their goals is a small effort with a big prize. Employee motivation and “going the extra mile” can be accredited to a happy and engaged employee who has had their successes recognised. Feedback loops occur when employees are given credit for the good things they have done. Promotions, public praise, a bonus or a raise are some ways to recognise your employees. To motivate them further, a competition for “employee of the month” can be put underway with a prize of a weekend away, a spa package or an announcement in the company newsletter.

7. Explain the big picture

People tend to be more committed to their tasks as well as the organisation as a whole when they understand the overall goal and how they are contributing to it. It is important to allow employees to understand the ultimate goal and why they are a valuable part in attaining it. Feeling included is also vital to the esteem of the employee.

8. Set clear goals

It has been established that, when setting out to meet a goal, people tend to work harder. Therefore, goals need to be established and defined and the resources allocated to reach that goal. Setting goals also brings purpose to daily work.

9. Communicate openly

Transparency is a trait that is greatly appreciated by employees. It allows them to know what to expect and relieves them from stress of the unexpected.

When employees feel they are human enough to be treated with open communication, they will return the respect by means of their work.

10. Undertake face-to-face communication

Face-to-face communication is a must when engaging with your employees. It helps them to feel that you have time for them and they are appreciated as people and not just employees. With modern day technology, it’s easier to get carried away and communicate in a more distant manner (over text and so forth), whereas speaking to someone face to face allows you to bond with them. Body language and simple gestures give off a different impression that may not be distinguished over text message.

11. Profit sharing

Remuneration in general is a way to keep employees happy. People want to earn fairly to believe that they are receiving the deserved treatment, that they are valuable and that their input is not unrecognised. A great way of recognising employees is profit sharing. Profit sharing dictates that an employee receives a direct share of the profit of the company they are working for. This ultimately increases employee motivation as they will endeavour to help the company attain larger profits so that they may receive more profit themselves, but essentially, this model allows for a fair remuneration as what employees receive is ultimately to their doing.

In conclusion

There are several ways to keep your employees happy that will ultimately benefit your company. A happy employee who is valued and remunerated fairly will produce work of a higher quality in greater quantities, and faster! Manage the business well and treat your customers correctly and you are well on the path to more profits.

Dr Mark Bussin is the Executive Chairperson at 21st Century Pay Solutions Group, www.21century.co.za, a Professor at University of Johannesburg, Professor Extraordinaire at North West University, Chairperson and member of various boards and remuneration committees, immediate past President and EXCO member of SARA, and a former Commissioner in the Office of the Presidency.

Daniela Christos is a Candidate Human Resources Practitioner at 21st Century Pay Solutions Group.

This article was published in the March 2017 issue of HR Future magazine.

None of us is as smart as all of us

There is an irrefutable case for workplace diversity.

It is prudent to pause and consider the many challenges and opportunities we are likely to face in the year ahead. Matters of innovation, digital transformation, technological advancement and business success often take centre stage, but for me there is one aspect of our business which I believe will be instrumental to our success on the African continent: that of diversity.

A vibrant and dynamic continent

According to UNESCO estimates, Africa is home to as many as 3,000 ethnic groups speaking more than 2,000 different languages across 54 countries. The African population is the second-largest of all continents, as well as the youngest. In some African countries, up to half the citizens are under the age of 25. Any company wishing to do business successfully in Africa must prioritise diversity or run the risk of alienating the very people with whom they want to do business.

Whilst Africa may sometimes be perceived to be making slow progress with modernisation; it is in many respects a world leader. Recent statistics regarding gender diversity in particular have been encouraging: the 2016 McKinsey Women Matter Africa report found that in Africa, 29% of senior managers are women, and 5% of African companies are headed up by female CEOs. While this is still low, it beats the global average (in Europe, female representation at CEO level is only 3%) and points to a concerted and honest effort to bring equal opportunity to women in the workplace.

Business case for diversity

I am of the firm belief that a company that champions diversity will be more innovative, able to respond quicker to changing customer needs and in a better position to adapt to the challenges presented by a rapidly evolving global economy, than its more homogeneous peers. Data supports this: research has found that African companies with at least a quarter share of women on their boards, had on average 20% higher earnings before interest and taxes (EBIT) than the industry average.

More tellingly, the global war for talent, which is set to be one of the core issues businesses will face in the next few decades, makes workplace discrimination a recipe for failure. Any business that ignores the contribution, skill and talent of a potential employee purely based on their gender or culture or background is effectively undermining its own ability to adapt and survive in a rapidly shifting and evolving global market.

Decades of science backs this: socially diverse groups (those with a diversity of race, ethnicity, gender and sexual orientation) are more innovative than homogeneous groups, as they are better at solving complex, non-routine problems, anticipating alternative viewpoints and making important decisions.

Understanding our customers

For companies wishing to do business here, having a culturally and genderdiverse workforce in place is essential to success.

Play an active role in fostering a culture of diversity

By creating a diverse team with a range of experiences and perspectives, you can unlock new approaches to problems that seemed insurmountable at first. This, of course, depends on there being a culture which encourages all team members to look for the strengths that each unique individual brings to the team and incorporate their views into the customer solution.

Driving a successful diversity strategy begins with the senior leaders; but in order for it to be fully sustainable, it needs to be lived by each and every one of us.

That is my call to action to all: make diversity a core focus for your business this year. Enable the people who work with you to bring diverse viewpoints and experiences to the boardroom table. Inspire your teams to have the courage to bring new perspectives to existing problems and challenges. Instil a culture of openness and trust that makes it easier for people to contribute to the success of the organisation. Never doubt that your contribution has value to the team, the business and society at large.

Our success as a business, and as individuals, will be inextricably linked to our ability to foster diversity in the workplace. Can any of us truly afford to ignore the challenge?

Brett Parker is the Managing Director: SAP Africa, www.sap.com.

This article was published in the March 2017 issue of HR Future magazine.

Education does not equal intelligence

Are we suppressing creativity in our education system by striving for perfection?

It is a fact that people have talent, but are educators growing these talents? Current teaching tends to only reward perfection or near perfection, based on students getting distinctions. Should education place more focus on students who will probably not achieve distinctions but who have specific talents that could make them potential creatives, leaders, entrepreneurs and innovators? In most educational systems, if 15% of students achieve distinctions, the teacher and school receives credit. But what about the other 85%? The point is, getting something 80% to 100% perfect is not necessarily the best solution.

The question is: Are we suppressing creativity, innovation, entrepreneurship and leadership in our education system by striving for perfection? There is certainly a need for creativity in education, this has been taught to me by students. However, creativity does not necessarily relate to perfection. The two are generally opposites. Education should encourage students to be creatively analytical and to develop their specific skills and confidence.

How should we develop strong leaders who have these skills? What is a creative leader and how can society benefit? I believe that this is someone who looks at leadership differently. A true leader needs to be brave and, at the same time, not be a dictator. Leadership is not about you. If you want to learn something then teach it, that’s how one becomes a good leader. Leading and learning from practical experience.

A creative leader’s communication is different. For example, you will get a better response and more positive action by asking someone the question: “What is the one thing you could do to improve your family situation?” Rather than saying: “Your family is messed up, what are you going to do about it?” In our quest for perfection in business, we are often blind to creativity. Creativity liberates both our imagination and innovation. On the other hand, productivity-focused leadership is limiting. Some people say that they are not creative. This is because they are programmed to think that way. Prejudice assumes what someone is long before you discover who they really are. This can also happen in our education system. Society has believed for so many years that education equals intelligence.

Now we see how wrong we have been. It’s a form of prejudice.

True leaders are not afraid of creativity. Their view is that creativity is not dangerous. They welcome new ideas, solutions and interpretations and go beyond the norm. However, it seems that the education system often stigmatises creativity and therefore leadership.

Creativity will always ensure you are on the edge, in unchartered waters, out of your comfort zone. Good leaders believe it is possible to lead under these conditions and enjoy the ride. Creative leaders believe there must be space to hold alternate views and accept the unconventional, in what is largely a conservative, productivity-focused, perfection-driven society.

A creative leader will also provide people with purpose, meaning and a sense of integrity and value. A good leader will make you and me give everything we have in service. The question is: can such traits be taught and, for that matter, can leadership be taught?

I believe these qualities can be taught, but I don’t think business schools in general are doing this sufficiently. We cannot teach leaders to only create businesses. There needs to be a strong focus on leadership, integrity and creating a better world.

Business schools are part of the process of trying to mould leaders who are not afraid to lead. You don’t have to be incredibly special to be a leader, you need sufficient self-knowledge to know you aren’t perfect as well as having a strong sense of purpose. Real leaders are continuously confronted by their own inadequacy, which they need to overcome on a regular basis. Erratic and compulsive behaviour are not traits of a good leader. Good leaders win respect. In anything you’re doing, if you want good reliability, good team information and good team intellect, you’ve got to have engagement and equality with those you lead. You also need to have processes that insist on response. By doing this, you institutionalise learning and creativity.

What can counteract creativity? You wouldn’t want a narcissistic leader. Narcissistic leaders are often found in the business world, and some of them might do very well in business, but they’re dreadful for running effective systems, encouraging creativity and becoming respected leaders. Ego is one of the biggest problems in business.

How do you manage egos sufficiently so that you can get intelligent people to think intelligently together – not just one person while the rest are subdued – and avoid random noise from everyone with no discipline?

When something goes wrong in business you assume there are multiple causes and contributors to it. You also assume that people who were involved in it saw some things early. So you ruthlessly unpack all of these until you understand what’s going on. This is really important in the development of leaders.

The principle is that in order to have accuracy you need to have feedback. Feedback loops prevent mistakes from happening or escalating. We all know that in business the bigger the mistake grows, the harder and more expensive it is to stop it. We need to think creatively in these situations as leaders. Small mistakes are negligible. If you catch them early, it costs very little and the mistake is hardly noticed. True leaders know this. Creativity blossoms in an environment where leaders encourage it, where egos are non-existent, and regular feedback is a requirement.

Jon Foster-Pedley is the Dean of Henley Business School Africa, www.henleysa.ac.za.

This article was published in the March 2017 issue of HR Future magazine.

Use these three principles to craft a more positive organisation

It is possible to use the laws of human psychology and sociology to build positive and resilient organisations that have the potential to change the world.

Everyone knows the difference between walking into an office where the vibe is positive and proactive compared with one where employees are counting the hours until home time, but the quest for a “magic formula” to build a positive organisational culture or indeed to prevent a negative one from festering remains elusive.

The bad news for those who are trying to build the perfect organisation is that there is no such thing. The reason for this is simple: when you are dealing with human beings and human experience, this changes over time. It means what was true yesterday might not be true today so it becomes virtually impossible to craft a formula or “institutionalise” positive behaviour.

Which is not to say that positive organisational cultures cannot be institutionalised. In fact, in an award-winning paper* on the topic, a different approach that is guided by flexible practices rather than tick boxes could hold the key to crafting more robust and resilient organisations that are independent of a particular leader or set of circumstances and have a positive impact on their people and the wider society in which they operate. And that doing so could be in itself a self-renewing and positive experience.

And that’s the good news.

Organisations need to move beyond simple measures to promote positive behaviours to embracing a set of practices and principles that guide behaviour on a day-to-day basis and require minimal enforcement. What we pay attention to is what drives systems. If an institution is a set of practices reliably reproduced across social space and time, I wanted to explore if a social purpose and qualities like joy, creativity, and fulfilment, that are fundamentally experiential could be institutionalised. Can the lived experience of freedom or compassion, say, come to be as socially widespread and resilient as the observable practice of bureaucracy?

Based on empirical studies over many years and a “strange pairing” of two divergent streams of academic theory, institutional theory and positive organisational studies (POS), three principles are foundational for crafting a positive institutional culture that will stick.

1. Make human experience visible

The world of institutional work is littered with failed attempts to deliver positive change into organisations and that is largely because the experiential factor – the subjective experience of the flesh-and-blood human beings who make up the institutions in question – has mostly been overlooked.

Traditionally, the theory of institutions has emphasised symbolic modes of legitimacy – the way in which formally encoded systems of norms, values and beliefs determine what counts for legitimate behaviour in an institution, and what doesn’t. It is a bit like measuring the health of a democracy by counting the number of people who have the vote rather than finding out if they feel they have a voice. Or, to use an example that will resonate with South African organisations, evaluating the racial dynamics of firms based on the adoption of particular policies, not on how people subjectively experience race in the workplace.

The latter is hard to measure unless people are given an opportunity to say what they are experiencing, and are actually heard. And that’s the point. You have to find ways to make visible what people are feeling and experiencing. If something is socially invisible, it can’t be socially evaluated. So a key dimension of positive institutional work must involve surfacing and sharing the inner experiences of people.

2. Routinise enquiry

The POS literature shows that interpersonal engagement and a routinised experience of enquiry – the mutual act of trying to figure out what the other person feels and thinks about a given situation – is common in organisations that have positive cultures. And underpinning this is the realisation that the ‘answers’ won’t stay the same. As things change, so do people’s feelings and experiences, so enquiring once won’t be sufficient. It has to be a daily practice.

This approach also opens up a broader and more liberating understanding of agency within the institution. Institutional researchers frequently portray agency as dialectical, that is, dependent on conflict or competition for scarce resources but, increasingly, research is indicating that effective agency is more often distributed, co-operative and cohesive than a single, heroic (and competitive) act. In the long term, it’s therefore more productive to build stronger relationships and an environment that can encourage reflection, and the search for common solutions. Collaborative inquiry can ultimately be a more reliable route towards positive institutional agency.

3. Avoid the status quo

Institutions, it has been argued, are traditionally defined through boundaries and practices or – put more simply – the questions of, “Where can I go?” and, “What can I do?” But enclosure isn’t always a good thing. In some cases it may actually be destabilising because it means that opportunities that provoke much-needed renewal may pass by unnoticed. And positive institutional goals are – in principle, anyway – unrestricted; goals like freedom, equality, vitality and compassion lose their meaning if they are confined only to a few.

Without romanticising it, positive institutions must therefore build into their system a commitment to disruption; of questioning and provoking of individuals, patterns and processes, of “delinking rules, norms and beliefs from group boundaries and material practices so that groups and practices might continually be adjusted around experiential purpose. This approach has transformative potential because it ensures that workplaces become more inclusive and more emancipatory, allowing people to achieve their potential and transcend boundaries more easily.

When it all comes together

Examples abound of organisations that are getting it wrong. Those that get it right – consistently – are generally thin on the ground. They could be called “outliers”. But it’s these that should be sought out and explored. One such local outlier is the much celebrated social enterprise R-Labs, a Cape Town based organisation that seeks to “reconstruct” communities through training, innovation and entrepreneurship.

The mission of R-Labs, “making hope contagious”, tells you everything you need to know. Hope, like empowerment (or freedom), is a deeply experiential concept that cannot be reduced to a set of competencies. R-Labs wants to enable digital empowerment, not digital literacy, so it stands to reason that how they go about that is through a more engaged, experiential process that is driven by a sustained inquiry into the meaning and experience of hope in each present person and circumstance. Common to the R-Labs organisational experience is that it is built around sharing and the telling of stories, which speaks directly to principles one and two. Secondly, they have more questions than they have answers but have become comfortable with the discomfort that this brings. And thirdly, they work hard to make the space inclusive and disruptive by bringing new people and ideas into the organisation whenever possible.

So why is this all so important? Should we care that the staff of R-Labs are more likely to say that they are their best selves than those working in most other organisations?

Indications are that positive cultures are good for business, certainly. Kanov et al write: “In an organisation where job roles are flexible, responsibilities are broad, and members are empowered, employees are more likely to see and act beyond boundaries of their formal position and heedfully organise themselves in response to trauma.”

But it’s also bigger than that. POS researchers argue that organisations have the potential to “basically create most of what society needs” – in short, the better they function, the better the rest of us outside the organisation function. Recent research has begun to connect this model to social change as well as environmental and social sustainability, which means positive institutions can have a directly positive impact on wider communities.

There is also a link between positive institutions and innovative capacity – there is a strong correlation between positive cultures and generative ideas and responses that make a difference.

It is this kind of energy that is enabling R-Labs, now in its eighth year, to be “wildly ambitious”, wanting to impact on two billion people. I don’t know many organisations other than perhaps Google and Microsoft that think on such scale.

This is the “sociology of the possible”. Much like we use the laws of physics to build a rocket that can take human beings to the moon, it is possible to use the laws of human psychology and sociology to build positive and resilient organisations that have the potential to change the world.

My hope is that an on-going exploration of these ideas will help us to realise the transformative potential of positive institutional work. Let us dare to imagine a world where it would be just as difficult to change a happy organisation as it is now to change an unhappy one.

Dr Warren Nilsson is a senior lecturer in social innovation at the UCT Graduate School of Business, www.gsb.uct.ac.za.

* Dr Warren Nilsson won the Academy of Management Review’s 2015 Best Paper Award for his paper entitled Positive Institutional Work: Exploring Institutional Work Through the Lens of Positive Organizational Scholarship.

This article was published in the March 2017 issue of HR Future magazine.

Six HR trends to look out for in 2017

Get a look at what’s around the corner in the human capital space.

We’re seeing the pace of change in human resources (HR) accelerate as digital technologies change the way we work, as digital natives enter the workplace, as labour law evolves and as competition for the best talent heats up. During 2017, we expect to see HR departments turn to technology to automate more of their work and to become more data-driven in their decision-making. Some of the key trends for this year are as follows:

1. The mobile device will be the HR department’s most imperative touchpoint

From recruiting talent to interacting with employees, the mobile phone is becoming the most important HR touchpoint for job candidates, employees, managers and other stakeholders. Today’s employees and jobseekers want it to be as convenient and easy to deal with an employer as it is to bank online or via a mobile app. Employers who want to attract young talent should make sure that their online job advertising and application processes are seamless, convenient and optimised for mobile devices.

Many companies already allow employees to use mobile apps to file expense reports and leave applications, change personal details, and access their payslips. In future, employees will increasingly access career and training information, performance feedback and other important data from mobile apps. Such apps must be attractive, easy to use, and functional so that users will love coming back to them.

Managers will also want to be able to access information such as performance reviews from their smartphones.

2. Data will drive decisionmaking

HR is about to change dramatically with data analytics becoming a way of life for HR Directors and HR Managers.

As HR professionals have more data (gathered through digital interfaces like employee self-service) about employees and the business at their fingertips than ever before, they will begin to use analytics to make better decisions and to shape superior employee experiences.

Data will help HR and the business to answer questions such as:

• Where did we find the best hires for our business, that is, top performers who we have retained for a good while?
• How many people will we need in our service department to support our forecasted revenue growth of 10% for the next financial year?
• What are the possible reasons for high employee turnover in the call centre? and
• What skills gaps do we have in our organisation?

3. Integrated HR systems will stretch from recruitment to performance management

We are seeing the worlds of payroll, HR and business management solutions move closer together as organisations adopt integrated solutions to gain better control over their workforce costs and create stronger engagement with employees. One benefit lies in the fact that data and transactions don’t need to be captured multiple times across different business applications.

In addition, such systems give HR teams a complete view of their relationships with employees, from on-boarding to engagement, talent development and performance management. This empowers HR to react to the needs of the workforce and the business in a more agile manner.

4. Performance management is changing

We have seen a lot of discussion in the past year or two about the value of annual performance reviews, and many large organisations around the world have streamlined performance management or even done away with annual reviews. Though I don’t foresee most companies scrapping annual reviews, I expect that performance management will change to cater for a changing work world.

We’ll see companies give employees feedback more frequently, perhaps each month or even each week, rather than once a year. This will help managers and employers to constantly monitor performance, identify challenges and opportunities and recalibrate employees’ alignment with its strategic objective. Annual reviews are useful in this regard, but they’re not frequent enough in a business world where the pace of change is so fast.

5. Online recruitment will continue to take over

Recent research by the Society of Human Resource Management shows that in the past five years, recruitment using social media has increased by 54%, with one out of five candidates applying for a job through social channels.

There are many tools that can streamline the recruitment process, from managing job applicants and filtering CVs, to interviewing and screening candidates, and right up to the on-boarding process. Though the human touch will always be important in HR, companies will extend their tools such as online applicant tracking, talent communities, social media and internal career portals.

Online platforms give organisations direct access to people in Africa and abroad who are looking for jobs, as well as the tools they need to publish their jobs to the Web and track the applications they receive. These tools help automate a lot of the paperwork for them, while providing access to high quality candidates.

6. Employer branding will be a focus

According to a recent EY Sub-Saharan Talent Trends and Practices Survey, the strength of the employer brand is the most important factor in attracting talent. Companies must focus on creating a positive culture; a quality workplace and a good employee experience since employees value this as much as they do money. Given that top professionals in most fields can choose where they work, employers need to sell their workplace experience and the benefits they offer to employees with as much enthusiasm as marketing departments sell the company’s products and services.

Anja van Beek is the Vice President for People (HR) at Sage International (Africa, Middle East, Asia & Australia), www.sage.com.

This article was published in the March 2017 issue of HR Future magazine.

Start the transformation conversation

All leaders should hear the call to start a transformation process.

We find ourselves in a complex environment of social ills, environmental catastrophes, corruption, unemployment, wars and a host of other problems – problems which will never go away … If anything, they will get worse. This planet has deteriorated to the point of no return. But, possibly, it can be proven otherwise … This may all sound so terribly negative and damning, devoid of any hope at all. In fact, it is not negative … It is called reality. If one feels totally overwhelmed by this reality, then the conditions are perfect for transformation – transformation of the self. Identify your pain, acknowledge it, work out a plan and then swing into action and transform.

What is transformation?

Transformation is the process of changing from one qualitative state to another. This transmutation can apply to an individual or an organisation, or even the product or service supplied by the organisation. In South Africa, transformation has a particular meaning related to the political transformation of society. An example of this is higher education having a transformative role in moving from apartheid to an inclusive society.

Transformation is a process which focuses on the enhancement and empowerment of the person. In an organisational context, it is a process of profound and radical change that orients an organisation in a new direction and takes it to an entirely different level of effectiveness.

Unlike ‘modification’ (which implies incremental and limited change on the same plane), transformation implies a basic change of character, and little or no resemblance with the past configuration or structure. At a glance, transformation appears to be limited to just a handful of types; this is not the case …

Types of transformation

• Global;
• Environmental;
• Political;
• Economic;
• Technological;
• Social;
• Legislative;
• Financial;
• Emotional;
• Physical;
• Relationship;
• Commercial;
• Spiritual;
• Health;
• Educational;
• Safety;
• Risk;
• Leadership;
• Management; and
• Last but not least, personal transformation.

Whilst it is true that one’s environment influences one in a big way, true transformation can be triggered when an individual feels enough pain to necessitate some or other remedy to relieve that pain.

The transformative view of quality is rooted in the notion of ‘qualitative change’, a fundamental change of form. Ice is transformed into water, and eventually steam, if it experiences an increase in temperature. While the increase in temperature can be measured, the transformation involves a qualitative change. Ice has different qualities to those of steam or water. Transformation is not restricted to apparent or physical transformation but also includes cognitive transcendence. This transformative notion of quality is well established in Western philosophy and can be found in the discussion of dialectical transformation in the works of Aristotle, Kant, Hegel and Marx. It is also at the heart of transcendental philosophies around the world, such as Buddhism and Jainism.

Whatever your goal, I believe it’s possible to throw off the chains of work and weariness. More than just being possible, I believe it’s doable. The key is to stop pushing and striving against the world and, instead, realise that change comes from the inside. Your identity can be explained by evolution and cultural adaptation, but it is controlled by consciousness, by you. So if you want to turn back the clock and lay the groundwork for a better tomorrow, it’s time to take a closer look at the only thing you can really change: yourself.

When is transformation required?

So how does one know when transformation is required? There is most probably no, one, definitive answer to this question, however, the following checklist can provide a good point of departure. The list of symptoms below is by no means conclusive, but is a very handy dipstick test:

1. Do you procrastinate?
2. Do you comfort eat?
3. Do you suffer from perfection?
4. Do you suffer from social anxiety?
5. Do you consume alcohol to relax?
6. Have you recently hit rock bottom?
7. Do you think about the past and feel anxious?

As a manager:

1. Do your team members volunteer information?
2. Do colleagues invite you for a casual chat?
3. Are you in touch with the most junior employee’s problems?
4. Do you manage your life according to deadlines?
5. How often do you use the words “Oh, but this is in the interest of the company!” and usually made in the context of suppressing the lower levels of employees.

Any change and transformation we experience does not happen in isolation, and those around us are not unaffected by the change. So, if we assume the reverse also to be true, then our immediate environment plays a significant role in the journey of our transformation. With the South African environment firmly in a state of perpetual changeand transformation (albeit very slow), we have no other option but to do a reality check with our places of work and download some of the dynamics into our own lives.

So what are we saying?

It will be a good idea to be aware of the changes taking at place at work and to find a way of becoming involved in this transformation; it will make your transformation so much more valuable and sustainable. True workplace transformation is required if South Africans are to survive in a competitive and volatile global village. It is lamentable that some heads of department, like Managing Directors and Chief Executive Officers have not yet realized the necessity for transformation. Reference is made to heads of department, because leaders realized the importance long before the Employment Equity and BBBEE Acts were even conceptualized! So what is the risk of not transforming? Very big and very real!

If you do not transform yourself in one way or the other, you are very likely to:

• be unhappy within yourself;
• be or become depressed;
• negatively influence relations with your family and friends;
• tolerate mediocrity;
• never achieve your full potential as a unique person;
• always compare yourself to others;
• respond to fads and fashion whims;
• feel inadequate;
• feel increasingly dissatisfied;
• suffer from time starvation;
• rush your life away;
• ask questions like:
– Why did I agree to …
– How do “they” think I must do this?
– When will I ever get some “me” time? and
• say, “Yes” when you want to say, “No!”

What do you notice? All the statements and/or questions are negative!

So, back to the question of whether or not one should transform. There is no alternative! For each one of us, our families, our places of work our employers, all our stakeholders and our great country, South Africa, we cannot lose any more time. We need to transform and move forward. My suggestion to business leaders, fathers, custodians of people and political leaders is to get the conversation about transformation going, make it part of your company culture and domestic value system and you will be amazed at the results!

Leon Steyn, www.leonsteyn.co.za, is the Director of Develop and Grow, a Transformational specialist, CEO SuperCoach and owner of The Simplifier® Methodology. He lectures in HRM at the University of Johannesburg.

This article was published in the March 2017 issue of HR Future magazine.

Change the way you hire people

HR Managers need to change their approach in a flexible, neurodiverse world.

In his book, Neurotribes, journalist Steve Silberman explains that one of the central misconceptions of people with autism and Asperger’s is that they are essentially unemployable. He goes on to point out that Isaac Newton and Albert Einstein had Asperger’s, as probably did Steve Jobs, and countless other big hitters in the world of business and technology. The reason many are deemed unemployable is not because they cannot do a job or have bad work ethics (quite the opposite in fact), but because they fail the interpersonal demands of the job interview.

As the 21st century nears the end of its second decade, technology is fracturing how companies organise and how employees operate. The explosion of the gig economy, currently epitomised by Uber and Deliveroo, but also by outsourced services from web design to content writing, and from VAs to remote-from-home employees. This fracturing of the traditional on-site employment structure is a real challenge to HR Managers. Until recently, HR executives were biased against remote workers, but this is changing.

Change your hiring policies and decisions

The face-to-face interview based on old interviewing techniques may be on the way out. Even the resumé is being phased out by some employers in favour of entrance examinations and practical on-the-job testing. With some auditions being done remotely and/or online or over the phone, HR Managers are required to think of new ways to assess suitability. This may mean moving away from charm and being well-spoken, away from eye-to-eye contact, and so on. It may mean hard, cold facts, test results, typed answers and portfolios. This will help the neurodiverse gain more employment as their actual talents will be judged rather than their perceived persona.

Change your work progress tracking and benefits

The switch to working from home for both remote workers and sub-contracted freelancers has actually been a boon to business in a wide number of ways.
These include:
• more engaged employees;
• more flexibility to scale up or scale down talent costs; and
• smaller offices and overheads.

There are also a legion of pros and cons for the employees themselves. These range from flexible working schedules to no more commuting to and from work every day. However, part of the HR Manager’s remit is tracking performance and assigning benefits and compensation to staff members.

An old school HR Manager may operate on the visual and social scale – who seems to be working the most, who is present, who talks to them most, and makes the best impression? All kinds of managers for centuries have thrived on this visual model. This is why Japanese employees never leave earlier than their boss, even if it means staying until midnight or beyond.

However, many hardworking, high quality employees have suffered because their work is quiet, understated, and they do not play the promotion game. This happens a lot for people with autism and Asperger’s who put all their effort into doing a good job, but see others promoted ahead of them – usually inferior employees.

Modern technology is allowing the HR Manager to track actual performance. This can range from clocking on to clocking off platforms, it can involve work submitted, actions taken, deadlines met, valuable contributions on cross-shared platforms, and a lot more. These provide real metrics demonstrating real abilities. This could mean, for the first time, compensation and benefits being fully meritocratic.

Jenny Holt is a US-based freelance writer and mother of two. She loves nothing more than getting away from it and taking her pet Labrador Bruce for long walks, something she can do a lot more now she’s left the corporate world behind.

This article was published in the March 2017 issue of HR Future magazine.

Dating skills with data

Deriving insights from HR data requires effort and skill.

In a previous article, I discussed how to get clean data for HR reporting. Now let’s move on to the next problem: deriving clear insights from the data.

Deriving insights

When I consult to companies on HR analytics, I find their biggest struggle is deriving insights from data. The reporting/analytics team provides reports, dashboards or self-service capabilities. People find this information interesting at first, but then interest fades because there is no actionable insight; there is no, “So what?”

This failure may be the result of one of four factors:
1. The HR reports may not be presenting the right data in the right way;
2. The users may not have the right skills;
3. There may be nothing of value in the data; and
4. The whole process may be back to front.

If you want to get better at deriving insights you need to understand which of these factors are at play in your organisation and how to correct them.

Issue 1: Presenting the right data in the right way

When deciding what to put in HR reports, we tend to ask managers, “What data do you want?” This seems reasonable, but it doesn’t usually work because managers don’t know what they want. They’ll ask for a lot of things that sound vaguely interesting. This keeps the reporting/analytics team busy, however, in the end vaguely interesting data doesn’t get looked at. The reporting team’s hard work was for naught.

The key is to have a session with managers where you work them through a process of discovering, “What information would you use? How would you use it?” Once you have a thorough understanding of how information will be used, it becomes selfevident what to put in reports and how to display it.

Takeaway: Choosing what data goes into a report takes a serious investment of time up front. Fortunately, you win that invested time back because you won’t be creating reports no one uses.

Issue 2: Users may not have the right skills

The degree of “data savvy” of HR pros and other managers varies enormously. Certainly you should give your HR team training in the basics of “data judgement”. They don’t need to learn statistics, but they have to be comfortable engaging with numbers. Once they’ve engaged they will run into issues that are too hard for them; but that’s okay, they’ll recognise this and get help from the members of the team who have better training in quantitative methods.

Takeaway: Provide basic training for HR professionals, but don’t try to turn them into statisticians.

Issue 3: There may be nothing of value in the data

To say that there may be nothing of value in the data borders on heresy, but it’s clearly true. Maybe you have terabytes of data on when your employees take breaks. That’s interesting, but there is no guarantee there is some deep insight to be found there. Yes, maybe you’ll find a certain pattern of breaks is connected to higher productivity; but chances are you won’t. Social scientists, who do this kind of thing for a living, know full well how hard it is to find significant new insights in big data.

Takeaway: Don’t invest a lot in randomly looking through data assuming something of value must be there. Unless you are pretty confident there is going to be value, then you’re probably wasting your time.

Issue 4: The whole process may be back to front

For years I’ve been training HR professionals to start with the decision they are trying to make and work back from there to the data they need, rather than start with the data (such as a report) and hope to find an insight that will help inform a decision.

Takeaway: Write up a clear process that starts with a business issue and an answerable question then works its way towards identifying relevant data that will help answer that question; and then give the HR team coaching in using that process.

Conclusion

There are various reasons why companies struggle with deriving insight from data. Perhaps the most fundamental reason is that we assume once we have some data, finding an insight will be easy. It’s not. We need to approach analytics is a systematic way with a clear understanding of what success looks like.

David Creelman is CEO of Creelman Research (www.creelmanresearch.com). He is best known for his workshops on People Analytics, Evidence-based Management and the Future of Work.

This article was published in the March 2017 issue of HR Future magazine.

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