THE TECHNOLOGICAL DYNAMICS IN LABOUR LAW AND THE SIGNIFICANCE OF ICT POLICIES

 

In law and business, closing the stable door after the horse has bolted, is not an option.The digital age is here.The developments in Information and Communication Technology (ICT) are terrific. Every aspect of our lives is being affected.  Your business in not spared. Our law is not spared.  The media is awash with stories about these developments.  Even criminals are casting new ways of achieving their criminal goals such as phishing (the attempt to acquire or acquiring sensitive information such as usernames, passwords, and credit card details, often for malicious reasons, by masquerading as a trustworthy entity in an electronic communication).

This means that business society and justice system ought to be prepared on how to deal with these technological developments. Computer and internet based criminal acts are now common. The advent of internet based social media means something else. Cases in which people have been defrauded through WhatsApp are on the rise.  It is obviously because of these developments that Zimbabwe is moving with time by embarking on the crafting cyber laws (e.g Computer Crime and Cyber Criminal Bill, Electronic Transactions and Electronic Commerce Bill and Data Protection Bill). Our civil justice system is also moving in the right direction as we are witnessing the proposed amendments to the civil laws of the country through the Judicial Laws Amendment (Ease of Settling Commercial and Other Disputes) Bill, 2016.

In this wake of technological changes, waiting in not an option. It is my view that in the realm of business in general and the labour market in particular, it is necessary for companies to have Information Communication Technology Policies (ICT Policies). Just like any company policy affecting employment relationship, ICT policy should be linked with the contracts of employment for it to be effective.  In other words, it is advisable to have a clause in the contract of employment to the effect that the employee agrees to be bound by the terms and conditions of the policy. Generally for business to come up with an effective ICT policy, it is necessary to hire a lawyer who can draft such policies.

Alternatively, for those industries that require what are called Collective Bargaining Agreements (CBAs) and for companies that have company Codes of Conduct, it is advisable to ensure that such CBAs and Codes of Conduct capture the relevant aspects that govern use of Information Technology.

It is important to note that although technology is bringing new concepts and methods of communication that are faster than the traditional ones, when it comes to the law, it is not like  completely new concepts of law have to be invented.  In my view, what should happen is our Parliamentarians and the courts should apply or modify the existing legal concepts in order to deal with new legal questions that may arise as a result of these technological changes. This, I believe, is what needs to be born in mind when crafting or debating these ICT policies and cyber laws. A good example that always come to my mind is the “Facebook” concept.  Facebook wall is like a newspaper that you buy from vendors along the streets of Harare.  Whatever is written in the newspaper is public and likewise whatever is posted on your Facebook wall becomes public and the existing rules of law governing defamation, privacy, confidentiality disclosure and transparency, respectfulness, security, diplomacy, disclaimers, copy rights and pending legal matters etc should come into play.  An email generated by an employee via company email address is just like a letter on the company letterhead and the existing laws governing employment come into play.  Obviously, there are some modifications that need to be done to the existing laws for them to effectively address the new needs of our society.

For more information of ICT policies, it may please someone to refer to my previous article that was published in the Law Society of Zimbabwe-run publication called Zim Juris (Issue No.1 2015). The article is entitled “Social Media visa vis employee misconduct”. That article is also available online on www.labourwatchzim.blogspot.com. In that article I recommended the use of Electronic Communication Policy (ECP) or ICT policy by companies as a way of improving dispute resolutions at workplace. It is interesting to note that the Employment Council for Electronic, Communication and Allied Industry recently came up with a CBA with very progressive provisions on use of technology. Section 28 of the CBA (SI 88/16) provides that:

“It is act an act of misconduct for an employee to disregard or breach the IT Policy and procedures including but not limited to the following:-

1. Sharing of passwords without authority;
2. Abuse of email;
3. Disclosing information of a confidential nature to unauthorized persons,
4. Accessing prohibited websites;
5. Spending time on non-work related internet activities.   

Though there are other legal issues that may arise as a result of these policies such as constitutional right to privacy and freedom of expression, these policies are very important in business. If a business has an ICT policy in place it means for that business if incidences of abuse of computers and internet are minimized hence less risks associated which such abuses e.g company legal liability and loss of business/profits. In cases of abuse of computers and internet, it is easy and quicker to dispose of disciplinary matters arising, hence leaving more time for business production and ultimately bringing more profits and a stable society. If business is making profit it will should not fail to pay its employees handsomely. Quick and easy resolution of disciplinary matters means less expenses in legal costs.

In the case of Elineth  Dick vs. Zimbabwe Revenue     Authority     SC 16/15  one of the reasons why the appellant employee lost an appeal was that she had sought to argue that the IT policy from which the misconduct she was charged with emanated,  was not part of her contract of employment.The allegation against the appellant was that on 22 April 2010 she had sent a video clip entitled “work done in the kitchen” via email.  It was not in dispute that the video clip contained indecent, obscene and immoral material. It was found that the dissemination of such material was contrary to the IT policy of the respondent which formed part of her contract of employment.  The offensive material had been sent from her business computer during working hours. Both the Labour Court and the Supreme Court found on appeal that it was clear that the IT policy was part of the appellant’s contract of employment hence the appellant was properly charged in terms of that IT policy and found guilty. Clearly the use of IT policy made it easy and cheaper for the business in this case to deal with a disciplinary matter involving use or abuse of emails.

It is critical to note that caution has to be exercised by both the employees and the employers when dealing with alleged misconduct emanating from IT policies or general abuse of business computers or internet. Employers have a tendency of rushing the allegations and carry out a hearing before proper investigations. For instance if the employer withdraws a computer from an employer and later on discovers, in the absence of the employee, some offensive material on the computer, it may create doubts in the minds of the court that indeed the offensive material was kept in the computer by the employee unless the nature of the material is such that it can be traced back to the employee without any doubt.

To goad discussions on the impact of the digital age on labour laws, I will pose the following questions:

1. Should it be fair for an employer to vet a prospective employee based on information gleaned from social media websites such as Facebook? Should the consent of the employee be required?
2. Should it be a misconduct for employees to discuss conditions of service on social media?
3. Should an employee be compelled by the employer to disclose his LinkedIn contacts which he acquired or obtained in his capacity as employee? Can such compulsion ignore LinkedIn user terms and conditions? Who owns these contacts, the employer or the employer?
4. Should an employer be allowed to use as evidence of misconduct the employee’s private YouTube or Twitter or Facebook or any social media posts?
5. Should an employer be held vicariously liable for the actions of its employees on social media?
6. Should an employer company that has failed to protect its secret or confidential date be allowed to stop ex-employees to use that data in a competing business?
7. Should court processes or letters of demand be served through Facebook?
8. Are Facebook posts private or public?
    

Answers to the above questions depend on what the existing laws (including CBAs) or employment contracts (including ICT policies and codes of conduct) say about the relevant concepts in each case e.g right to privacy, interception of communication, restraints of trade and confidentiality, unfair completion, soliciting of employees, customers/clients, defamation, harassment and recruitment etc.


In conclusion, Zimbabwe in general is in the right direction in as far as moving with technology is concerned. What is however required is to move with speedy in crafting cyber laws and ICT policies. With technology, the laws should be quickly amended or crafted otherwise if it is delayed,  technology will remind us that ‘ justice delayed is justice denied’- in deed a lot of bad things may have taken place by the time the new law comes out. As such we should avoid waiting to close the stable after the horse has bolted.

THE EASE OF DOING BUSINESS: DIGITISATION AND DIGITITALISATION OF THE JUSTICE SYSTEM

 THE EASE OF DOING BUSINESS IN ZIMBABWE: JUSTICE SYSTEM

I believe that for any society to make sound economic progress, it must have a reliable legal system.  Business and society thrive when the legal system is conducive for negotiating and concluding contracts, litigating, arbitrating and mediating contractual disputes.  Digitalization of the justice system is one of many ways through which the justice system can be more conducive to business.

The Oxford English Dictionary (OED) traces the first uses of the terms ‘digitization’ and ‘digitalization’ in conjunction with computers to the mid-1950s. In the OED, digitization refers to “the action or process of digitizing; the conversion of analogue data (esp. in later use images, video, and text) into digital form.” Digitalization, by contrast, refers to “the adoption or increase in use of digital or computer technology by an organization, industry, country, etc.”

In short digitization is thus the conversion of analog information to digital information while digitalization is the strategy of adopting recent technologies in IT to make the most of the digital resources available in an enterprise or institution.

Prior to digital technology, electronic transmission was limited to analog technology, which conveys data as electronic signals of varying frequency or amplitude that are added to carrier waves of a given frequency. Broadcast and phone transmission has conventionally used analog technology. Digital technology is primarily used with new physical communications media, such as satellite and fiber optic transmission. A modem is used to convert the digital information in your computer to analog signals for your phone line and to convert analog phone signals to digital information for your computer.

In this article, I wish to briefly analyze the proposed laws namely the Deeds Registries Amendment Bill [HB 3/16] and Judicial Laws Amendment (Ease of Settling Commercial or Other Disputes) Bill [HB 4/16] in as far as digitalization is concerned.  The two Bills were gazetted on 26 June 2016.

Deeds Registries Amendment Bill

The Bill proposes the following:

Establishment of Electronic Registry

It is proposed that the Registrar of Deeds may establish an electronic registry.  This means whatever is currently being done at Deeds Office through paper-based documents, will be done electronically.  This means a conveyancer (a lawyer who is qualified to attend to , among other things, the transfer of title in immovable properties) will be able to sign a draft deed of transfer using digital signature and electronically send the electronic record of the draft deed to the Deeds Office.  The Registrar will be able to electronically examine the draft deed.  This will obviously lead to a quicker way of attending to a transfer of immovable property in Zimbabwe.  What it means is instead of sending a messenger to lodge the draft deed at Deeds Office, the draft is electronically sent and in a split of a second, it will be before the Registrar.  Generally, if it was requiring five (5) days to register title, it will be now possible to have registration done in a day if not hours or minutes.

The Electronic Registry will also enable what will be called ‘registered users’ to access it for research and information gathering purposes. This means a registered user will be able, from his office, to ascertain the title registration details of a certain immovable property e.g the names of the owner and whether or not the property has a mortgage bond registered against it.

The Electronic Registry will be used by registered users only.  Users who will not be registered users will continue using paper-based Deeds Registry. Registered users may be required to use the paper-based deeds registry concurrently to the extent that may be prescribed in Regulations.

Use of electronic data generally as evidence

In the event of a discrepancy between an electronic copy of document lodged with electronic registry and the material version of the same document that is lodged with paper based deeds registry, the paper-based document shall be deemed an authentic record of the document.  This means if the electronic version of a title deed shows that transfer was registered on 1 July 2017 but the paper-based version shows that transfer was registered on 1 June 2017, it is 1 June 2017 which will be taken as the date of registration. In my view when attending to registration of title in terms of the proposed amendment, it is therefore advisable for one to have both paper-based document and electronic document.

Electronic data will be admissible evidence and shall be given due evidential weight unless there are compelling reasons militating against that, considering the manner in which the data was generated, stated or communicated, the integrity of maintaining the data; originator identification and such other considerations.

User Agreements

The Registrar is required to enter into a user agreement with each registered user for purposes of regulating the use of electronic registry.  The Bill proposes a template user agreement.  The agreement will provide for; a mandatory electronic registry user agreement training course, interconnectivity requirements, confidentiality and security, integrity of electronic registry data, electronic signatures and passwords, prohibition of use of the electronic registry data for gain, term of agreement, breach and termination of the agreement among other things.

Miscellaneous Provisions

The Bill provides how the relationship between the Register and a registered user will be regulated, e.g. with regards registration and suspension of registered user  and cancellation  of such registration, digital signatures and passwords, production and retention of records, sending and receipts of electronic communications, alternatives to electronic communications, unlawful use of computer systems and  restrictions on disclosure of information.

I light of all this, the Bill will make the conveyancing and notarial practice work at Deeds Office more efficient.  This improves business generally.  Mortgage bonds will be registered faster hence loans will be released faster.  The Electronic Registry is optional, so if one is not a registered user, he can still use the paper-based Deeds Registry.

Judicial Laws Amendment Bill

Sittings of the Courts

This Bill seeks to amend Section 47 of the High Court Act such that the High Court or High Court judges will be enabled to hear civil matters through a ‘virtual sitting’.  Virtual sitting entails the use of any electronic or other means of communication by which parties to legal proceedings may be heard and hear each other at the same time without being physically present together.

It is important to note that for a virtual sitting to take place, the parties to the proceedings must have agreed that the proceedings be in that form.  In other words if one party is not competent in using  virtual sitting technological equipment and is not amenable to a virtual sitting, the matter will be heard in open court or judge’s chambers, whichever the case may be. However, for virtual sittings to be applied, the High Court Rules have to be amended to that effect.

Court Rules

Furthermore, the Bill seeks to amend Section 56 of the High Court Act to the effect that the High Court Rules may provide for:

(a)  The service of process by electronic means;

(b)  The authentication of documents by electronic means, whether executed inside or outside Zimbabwe; and

(c)  The digitization of the records filed or lodged with the Registrar and the condition of access thereat or for the copying thereof for the purposes of any judicial proceedings.

The amendments that are being proposed to the High Court Act in terms of this Bill are also being proposed to the Magistrates’ Court Act in terms of the same Bill. These proposed amendments should be extended to the Companies and Intellectual Property Registries.

 In the same vein it is noted that Zimbabwean government is working on e-government service called Zimconnect. The website will offer e-services that include visa applications, company registration, corporate name change, deeds search, the processing of investment and mining licences as well as the licensing for local government services like operating a liquor store. This is a brilliant idea. This will make it quicker to do business in Zimbabwe and possibly do away with alleged corrupt acts and red tape by some state employees. However the enabling laws are yet to be passed.

I conclusion, the digitalization of the justice system has a myriad of advantages. Primarily, it will remove case backlogs, make the justice process swift and keep abreast with the fast-moving world of today. However this is a process that will take a bit of time and is costly to establish. It is indeed a matter of great success that the digitalization of courts in Zimbabwe has already started. The daily 'cause list' of  High Court  cases can now be found online together with the court judgments, allowing litigants and lawyers to access the requisite materials themselves. It will take time before the entire court system becomes digital. As such the lawyers, litigants and judges should adapt to the new system and provide constructive feedback for the improvement of the digital court system.

Tipping the scales of justice: An update on Special Economic Zones vis-à-vis employment rights.

 

In my previous  article entitled THE LABOUR LAW PERSPECTIVES ON THE SPECIAL ECONOMIC ZONES (SEZs) BILL, (HB 15/2015): A DELICATE BALANCING EXERCISE, which article was  published  in The Zimbabwe Independant newspaper edition of 20th May 2016 and in available online, I extensively discussed the said Bill .

As an update, the Bill was initially sent to the President for his signature but the President in his wisdom refered the Bill back to Parliament on the basis that section 56 of the Bill was unconstitutional. After the Parliament attended to the  Bill for the second time, the  Bill  was later referred back to the President on 27th October 2016 for his assent and signature. On 18th November 2016, the  bill was gazetted as an Act of parliament namely, Special Economic Zones Act (Chapter  14:34) (Act 7/16).In the above mentioned article, I stated the following:

"To alley any fears of abuse of labour rights in SEZs, I am of the view that the word “may” in section 56(2) of the Bill must be changed to “shall”. In line with that view, section 56(2) of the Bill ought to be clear that the rules in question shall apply in SEZs. This has the effect of making it mandatory that the SEZs Authority makes the necessary rules and the application of the rules in SEZs becomes mandatory.

If the suggested changes are not made, by virtue of the use of the word ‘may’ in section 56 (1) of the Bill, the Authority remains with a discretion whether to make the rules or not. This is really not good for the employers and employees as it may take long before an election to make the rules is made. It will be worse, if the election is not to make the rules. If the rules are not made, it means the laws of the jungle will apply between the employer and employee in SEZs. On that basis there is a possibility that the establishment of SEZs may lead to labour rights violations such as minimum wages, or standard working hours, or the right to strike, or to form trade unions"

 

What has happened following the referal of the Bill back to Parliament is that the name 'Labour Act (Chapter 28:01)' was actually deleted from section 56 (1).This means that the Labour Act will not be suspended in the special economic zones. However , in light of section 56 (2) of the SEZs Act which was gazetted  on 18th November 2016, this does not necessarily mean that employees in SEZs will continue to be governed by the Labour Act. It is therefore too early to celebrate. In the said article, my recommendation with regards section 56 (2) was to replace the   word "may" with "shall" as it will not be enough for Parliament to only remove the name  Labour Act in section 56 (1) without attending to section 56(2). I am pleased to note that when the Bill was finally dealt with in Parliament and gazetted,  the word 'may' in section 56(2) was replaced with the word 'must' which has the same effect with the word 'shall'. What this means is  that the employees in  Special Economic Zones shall be governed by certain regulations to be made by SEZs Authority.

 

In conclusion, my last prayer to the powers that be is that the intended regulations be  fair and just  to both the employers and employees. Such regulations ,in my view, should not therefore   limit the rights and obligations of both the employers and employees which rights and obligations are stipulated in both the Constitution and the Labour Act.   The question that I will leave open today is therefore : What is  the nature of the labour regulations that the Authority is required to come up with for purposes of SEZs? The nation is waiting for an answer.