Letters to the editor – December 2021

December 1st, 2021
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PO Box 36626, Menlo Park 0102

Docex 82, Pretoria

E-mail: derebus@derebus.org.za

Fax: (012) 362 0969

Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses
known to the editor may be considered for publication anonymously.

The release of examination results by the LPC without the memorandum leaves a lot to be desired

Traditionally, with the outcome of the Competency Admission Examinations, a memorandum with the answers should accompany the results.

The results of the examinations conducted by the Legal Practice Council (LPC) do not. The LPC does not make the memorandum of the answers to the questions asked during the aforesaid examination available.

The consequences, of failing to publish the memorandum –

  • robs the candidates of the chance to self-assess and measure their performance in the examination against the answers contained in the memorandum;
  • does not inspire confidence in the marking process and the examiners;
  • lacks transparency; and
  • the costs of R 600 to remark the script is prohibitive and results in the affected candidate to wait for the next window of the subsequent examination, which follows in six months, without removing doubt that might exist.

An attempt to make an inquiry for the non-publication of the memorandum simultaneously with the examination results was directed to the LPC. The response (not official) thereto was ‘the publication of the memorandum is withheld because the oral examination will follow soon thereafter and that the release of the memorandum will be done after such process is complete’.

Can someone from the LPC advise when this position will be altered and provide clarity on the withholding of the memorandum on the release of the exam results?

 

Affected conveyancing exam
candidate, Johannesburg

Response from the LPC

The Legal Practice Council’s (LPC’s) examination process is inclusive of the various stages of testing, which includes the written and oral testing as one process. As a result, the content of the testing at various stages often tests similar competencies and knowledge. Keeping this in mind, the examination results are released to give the candidate a measure of how well they understood the subject. With the oral (remarking process, where applicable) commencing immediately as part of the process – sharing the memorandum would be tantamount to sharing the answer script as the examination is still in progress.

After the remarking and oral examination processes are completed, and the results for those sittings are finalised, the examination papers and marking memoranda are released to the candidates and the legal profession.

It is important to note that an oral examination is regarded as a supplementary examination, and not as a new examination. The marking memoranda cannot be released until all the examinations and processes are complete.

The examinations are marked by experienced, trained examiners, and moderated to ensure consistency and accuracy in the marking process. If a candidate applies for a remark of their answer script, and their mark changes after the remarking process, the candidate is refunded the fee that they paid for that remark in full.

The examination papers and the marking memoranda are released to all candidates and the legal profession as soon as the examination process is complete. The candidates can then self-assess and measure their performance and ensure that they are prepared for the next sitting of the examinations, if applicable. Studying past papers will not assist candidates to pass future examinations, as questions are not repeated in future examinations.

Legal Practice Council
National Office, Midrand

 

‘The algorithm fired me!’

This is a lament that we may soon hear from employees, as companies use artificial intelligence to monitor the performance and conduct of their employees. It is currently not clear to what extent employers are using this technology in South Africa (SA). Reports emanating from the United States (US) show that dismissals are already taking place in this manner.

The Batch newsletter published by DeepLearning.AI reports that Amazon delivery drivers have complained that the company’s ‘automated management system played an unfair role in terminating their employment’, as reported by Bloomberg (see Andrew Ng ‘When Algorithms Manage Humans’ (https://read.deeplearning.ai, accessed 10-11-2021) and Spencer Soper ‘Fired by Bot at Amazon: “It’s You Against the Machine”’ (www.bloomberg.com, accessed 10-11-2021)).

The system allocates ratings to drivers automatically on their punctuality in picking up and delivering packages and ‘how closely they follow instructions like “place the package on my back porch”’ (Ng (op cit)).

Dismissed drivers complained that the system did not take delays at the Amazon distribution centres into account, including traffic jams, gated apartment complexes or bad weather. ‘A former Amazon manager told Bloomberg the company was aware that its system had flaws that could lead to bad publicity but decided that higher efficiency was worth that risk’ (Ng (op cit)). It also emphasised that algorithms do ‘not make the final decision to terminate employment’, and that human managers reviewed the issue of poor performance (Ng (op cit)). A few years ago, ‘the company abandoned a hiring algorithm after an internal audit found that it was biased against women’ (Ng (op cit)).

The Batch newsletter makes the worrying observation that organisations are increasingly relying on algorithms to ‘make decisions that impact peoples’ lives, including who gets a bank loan, a job’, or who must be imprisoned (Ng (op cit)). Activists are demanding that there should be accountability to ‘mitigate algorithmic bias’ and for people to appeal to humans when an automated decision has been made (Ng (op cit)). Human intervention is required because ‘compassion and respect’ do not appear to be qualities that are capable of being embedded into an algorithm (Ng (op cit)).

If these reports are correct, then I submit that this is a worrying trend. But, it is unlikely that a South African employer will be able to use such evidence at the Commission for Conciliation, Mediation and Arbitration (CCMA) or the court because it is not clear how the device containing the algorithm will present evidence or be subjected to cross-examination.

As the law presently stands in SA, certain interactions must take place, between humans, when the issue of a dismissal for poor performance is at issue:

  • An explanation at the outset of the employment relationship of the performance standard expected of the employee.
  • The criteria that would be used to monitor and measure the employee’s performance. This is also known as the key performance indicators.
  • The person to whom the employee will report.
  • In cases where the employer is taking affirmative action measures, and in other appropriate cases, suitable training is given to the employee to enable them to perform.
  • That the employee is given guidance and feedback on their performance at regular intervals, in order to enable them to remedy performance deficiencies or shortcomings.
  • Where the employee is not performing to the standard, to determine whether the standard is reasonable, realistic, fair and attainable; and whether employees in comparative positions are performing to the standard.
  • The technical support, resources and tools that will be provided to the employee to enable them to perform.
  • If the employee works in a team, to determine whether the performance of any other team member is impacting negatively on the employee’s performance.
  • Where the employee is performing below the required standard, for a counselling session to be scheduled so that difficulties can be identified and a plan agreed upon to overcome the difficulties.
  • To issue employees warnings if necessary.

Employers should in the circumstances be cautious in the adoption of these technologies, because it is inevitable, that there will come a time when an explanation will be needed to be given by a human, in plain language, on how the employer arrived at a fair decision to dismiss an employee for poor performance. Where such evidence cannot be presented, or where such evidence cannot be interrogated and questioned, a finding may be made against an employer that the dismissal is unfair.

Ranjit Jamnadas Purshotam BProc LLB (Unisa) is a legal practitioner at JP Purshotam Attorney
and a Consultant with the Legal Resources Centre and part-time commissioner
at the Commission for Conciliation, Mediation and Arbitration in Durban

 

This article was first published in De Rebus in 2021 (Dec) DR 5.

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