HR Pulse

Motorola avoids ban

Google unit Motorola Mobility said yesterday it has taken steps to avert an interruption of US imports and sales of its smartphones after the devices were found to infringe on a Microsoft patent.

The importation to the US of some Motorola Mobility smartphones was supposed to stop today as the result of an International Trade Commission (ITC) ruling that the phones infringed on technology that makes it possible for consumers to use the devices to generate meeting requests and schedule gatherings.

"While we can't share specific details, we have employed a range of proactive measures to ensure there is no continuing infringement under the ITC's interpretation of this single Microsoft patent," Motorola Mobility spokesperson Becki Leonard said in an e-mailed statement.

One option for Motorola Mobility would be to remove the meeting-scheduling technology from its smartphones and tablets. Microsoft previously said Motorola Mobility should license the technology.

The affected phones were: Atrix, Backflip, Bravo, Charm, Cliq, Cliq 2, Cliq XT, Defy, Devour, Droid 2, Droid 2 Global, Droid Pro, Droid X, Droid X2, Flipout, Flipside, Spice and the Xoom tablet.

Google acquired Motorola Mobility in May.

The legal fight at the ITC is one of dozens globally between various smartphone makers. Google's Android system has become the top-selling smartphone operating system, ahead of mobile systems by Apple, Microsoft, Research In Motion and others.

In mid-May, some HTC smartphone models were stopped at the US border because it lost a patent dispute with Apple at the ITC in December. Shares in HTC tumbled more than 6% when shipments were held up.

In a complaint filed in October 2010, Microsoft accused Motorola Mobility of infringing nine patents. The ITC ruled in May that Motorola Mobility infringed on one.

Google's Android software has recently become the most popular cellphone operating system with 56% of the market in the first quarter of 2012, according to data from Gartner.

The ITC is a popular venue for patent litigation since it has the power to forbid the importation of products that infringe on patents.

Source: ITWeb Virtual Print Offices.

Regulating HIV and AIDs

On 15 June 2012 the minister of Labour issued a revised Code of Good Practice on HIV and AIDS and the World of Work (“the Code”). The Code amends the Code of Good Practice on Key Aspects of HIV and AIDS and Employment in order to align it with the ILO’s recommendations.

The primary objective of the Code is to provide guidelines that assist employers in developing workplace policies and programmes eliminating unfair discrimination, promoting access to education and managing HIV and AIDS in the workplace.

The Code is of wide application and applies to all “workers” as defined, at all workplaces in all sectors of economic activity.  We highlight some of the principles set out in the Code which are of relevance to employers.

The Code confirms that no employer may stipulate that a worker or applicant for employment undertake an HIV test in order to ascertain that person’s HIV status. Testing must be consensual and voluntary. Authorisation for mandatory HIV testing of workers must be sought from the Labour Court.

Where a worker chooses to disclose his or her HIV status to an employer, such information must be kept confidential.

The Code reiterates that section 15(2(c) of the Employment Equity Act requires employers to provide reasonable accommodation to workers living with AIDS and HIV.  Such reasonable accommodation includes adapting existing facilities and equipment, restructuring jobs and adjusting working time and leave.

Workers with HIV and AIDS must not be unfairly discriminated against in the allocation of employee benefits.  Workers with HIV and AIDS must be treated no less favourably than workers with other serious illnesses in terms of benefits, workers’ compensation and reasonable accommodation.

Where a worker is too ill to perform his or her current duties, an employer is obliged to follow the guidelines for dismissal for incapacity.

Employers must provide and maintain a workplace that is safe and without risk to the health of its workers.  HIV and AIDS must be included in any workplace Occupational Health and Safety strategy.

Employers should also design and implement a monitoring and evaluation plan that addresses strategies to curb HIV and AIDS.

Source: Melanie Hart, Director, Employment, Cliffe Dekker Hofmeyr

RIM pay $147m verdict

A northern California jury directed Research In Motion (RIM) to pay $147.2 million in patent litigation over a remote management system for wireless devices, according to an attorney for the plaintiff, Mformation Technologies.

The verdict on Friday in a San Francisco federal court comes at a bad time for RIM, whose stock has fallen more than 70% in the past year as customers abandon the BlackBerry in favour of Apple's iPhone and a slew of devices using Google's Android software.
 
Amar Thakur, an attorney for Mformation, said the jury directed RIM to pay an $8 royalty for every BlackBerry device connected to RIM's enterprise server software, which brings the total award to $147.2 million. The verdict only covers US sales through trial, Thakur said, and not future or foreign damages.

RIM spokesperson Crystal Roberts said the company has pending legal motions that could overturn the verdict.

"Research In Motion has worked hard to develop its leading-edge BlackBerry technology," Roberts said in a statement.

Based in Waterloo, Ontario, RIM last month posted its first operating loss in eight years, and it was much deeper than expected. The company also said it was cutting 5 000 jobs, almost a third of its workforce, as it struggles to win back its reputation as an industry innovator.

Mformation sued RIM in 2008, bringing claims on a patent for a process that remotely manages a wireless device over a wireless network, a court filing says. According to its Web site, Mformation helps corporations manage their smartphone inventory. The company also says it helps telecoms operators, such as AT&T and Sprint, with remote fixes and upgrades for users' gadgets.

RIM argued that Mformation's patent claims are invalid because the processes were already being used when Mformation filed its patent application.

The jury deliberated for four days before handing down its verdict, Thakur said.

Source: ITWeb Virtual Press Offices.

Court's victory

The Constitutional Court today confirmed that head organisers of public gatherings can lawfully be held liable for damages caused by demonstrators. Johan Botes, Director in the Employment Practice at Cliffe Dekker Hofmeyr business law firm explains that the Court dismissed an appeal by the South African Transport and Allied Workers Union (SATAWU) against an earlier finding by the Supreme Court of Appeal that similarly confirmed that they may be held liable for damage caused by protestors.

“Numerous small business owners and also vehicle owners initiated proceedings to hold SATAWU liable for damage caused by demonstrators following a march arranged by SATAWU to protest various employment issues pertinent to the security industry. Flower and handbag stalls along the way of the march were looted or damaged with various private vehicles ending on the receiving end of angry protestors’ frustrations,” he says.

“SATAWU’s liability for these damages arise from section 11(1) of the Regulation of Gatherings Act (RAGA). This section creates liability for every participant in the gathering, every organisation on behalf of or under the auspices of which that gathering was held, or, if not so held, the convener, for riot damage caused. The RAGA creates a statutory defence (section 11(2)) against such liability where a party can show that he or it took all reasonable steps within his or its power to prevent the act or omission in question,” Botes explains.

The questions before the Constitutional Court centred around (1) the interpretation of Section 11(2) – does it create a defence – and (2) if so, whether the defence limits the right to freedom of assembly in Section 17 of the Constitution and whether this limitation is reasonable.

“The Court confirmed in a majority judgment that the defence against liability provided in section 11(2) of RAGA is viable. It held further that the limitation of the right to freedom of assembly is reasonable. The Court stated that the limitation serves an important purpose in balancing conflicting rights of organisers, participants and vulnerable or helpless victims. Mogoeng CJ warned that organisers of such public gatherings are obliged to take reasonable steps to prevent all reasonably foreseeable conduct that causes damage,” he says.

Source: HR Pulse News Desk

Linked-In as proof

The South Gauteng High Court had no hesitation in relying on information posted on an ex-employee’s Linked-In online account confirming that he had indeed fostered  relationships with his previous employer’s clients.  According to Johan Botes, Employment Director at business law firm, Cliffe Dekker Hofmeyr, the case serves as another reminder of the unintentional consequences and perils of posting information on social networking platforms like Facebook, Twitter and Linked-In.,

“In Experia South Africa (Pty) Ltd v Haynes and another (judgment delivered on 18 May 2012), the employee’s previous employer sought to hold him to a restraint of trade agreement. In terms of this agreement, the employee was prohibited from taking up employment with a competitor for a period of 12 months after termination of employment,” explains Botes.

“It was not in dispute that the employee then indeed took up employment with a competitor during this restraint period,” Botes notes. “The employee sought to assail the agreement by claiming inter alia that that he signed the agreement under duress, the agreement was unfair, that the agreement is against the provisions of section 197 of the Labour Relations Act 66 of 1995 (LRA) and that there was no protectable interest the previous employer could enforce.”

“The Court made short shrift of the arguments advanced on behalf of the employee. It confirmed that hard bargaining by parties, even where the power relationship is unequal, does not mean that the agreement was concluded under duress. It held further that their agreement was not unfair …….”.

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