LOCKDOWN: POLICY & EMPLOYMENT

A National State of Disaster was declared on the evening of 15 March 2020 and soon we will enter a lockdown. What does this mean for employers and employees?

Businesses exempt from lockdown:

In terms of the statement from our president, essential services (health workers, emergency personnel, security services and other persons necessary for the response) will still be permitted to operate, and those employees involved in the production, distribution and supply of food, essential banking services, the maintenance of power, water and telecommunications services, laboratory services and the provision of medical and hygiene products, will be permitted to work. We discuss the Disaster Management Act in a separate article here.

Only pharmacies, laboratories, banks, essential financial and payment services, including the JSE, supermarkets, petrol stations and health care providers will remain open. Companies that are essential to the production of food, basic goods and medical supplies will remain open. Unless your business can operate remotely, it must remain closed. We will add the full list as soon as it becomes available.

These businesses still have obligations, in terms of the common law and Occupational Health and Safety Act to provide protection, assess if employees have symptoms and assist accordingly. In most other respects and subject to regulations, these businesses will run as usual, albeit perhaps on a skeleton staff complement.

 

Businesses which can work remotely:

There are a number of businesses where employees, or at least some employees, can work remotely. The important factor during the lockdown is that people stay at home. There are a myriad of online tools, video conferencing platforms, email and phonecalls with which to get this done. What we recommend is that there be a specific policy put in place for remote personnel during this time. The policy should cover the following:

  • that the sick leave policy still applies. If employees are not working they must supply a sick note, which may be accepted electronically;
  • that employees should log into their platforms or virtual workstations, if required;
  • that employees should complete their tasks;
  • set times for meetings, teleconferences, video-calls or update reports;
  • that assigned projects or developments, hours required and KPI’s are still applicable.
  • that adaptation is necessary is clear, but both management and staff need to work together.

In all other aspects to attempt, as far as possible, to run business without having to meet face-to-face. This will require ingenuity, understanding and discipline.

 

Businesses which cannot operate:

Those business which are not exempt and which cannot operate remotely will have to be closed for the lockdown. We discuss how this may affect client and supplier obligations in a separate article here. There is no lawful way around that, employees should be protected and a violation of these regulations may carry criminal consequences. There are several alternatives to retrenchment and businesses are advised to be as accommodating as possible and innovative in the coming weeks and months.

Retrenchments should not be done lightly:

Section 189 of the Labour Relations Act specifies a consultative process for retrenchment based on operational requirements. These force an employer to consider, in a meaningful, joint consensus-seeking consultation with the employees and any relevant bargaining council.

The parties must investigate appropriate measures :

  • to avoid the dismissals;
  • to minimise the number of dismissals;
  • to change the timing of the dismissals; and
  • to mitigate the adverse effects of the dismissals;
  • the method for selecting the employees to be dismissed; and
  • the severance pay for dismissed employees.

The financial effects of the lockdown have not yet taken full effect and so these processes do need to be followed and there simply is not time. Employers will be obliged to follow the law, giving full information as to their operational requirements, financial situation as well as methods investigated to avoid dismissals. To merely dismiss based on the lockdown and nothing further would be unlawful. There are more detailed resources available here from the CCMA and some helpful articles here.

Alternatives to consider:

In attempting to manage the resultant break in cash flow from the lockdown, there are several options employers should try to accomodate:

  • Paid leave already due to employees being taken;
  • Unpaid or special leave;
  • Short time if able to do some work remotely;
  • Employee loans up to a maximum of 25% of their salary;
  • Those who earn on a commission basis, being paid a portion of commission expected in usual business and then having to later work or earn back the commission;
  • Those who earn on a weekly basis, being paid one day’s salary per week, with then one day’s work being unpaid after lockdown;
  • Employees being given projects to work on at home during this time;

Government Assistance and Mechanisms:

Measures to assist with claiming UIF during this time are being promulgated as well as assistance to SMME’s, the Temporary Employee Relief Scheme has been set in motion, you can find details from the CCMA here. There are also certain tax reliefs coming in the way of UIF contributions not being payable and other measures during this time.

While the CCMA is not accommodating in person procedures during this time, be sure that once the lockdown is over, unfair dismissal and unfair labour practices, by making retrenchments without compliance with section 189 during this time, will likely be viewed in a very harsh light and compensation awards could be severe.

 

Communication is key: 

In all of these murky waters to navigate, what is important is to communicate with staff. Clear understanding of expectations,  obligations and investigations of ways to mitigate this disaster will be vital to the future of any business. May we all spend this time innovating, learning and refining our business plans, caring for our loved ones and hoping for the future.

 

Copyright reserved. This is not meant to constitute legal advice bespoke to your situation and is for informative purposes only. Please obtain legal advice if required. You are welcome to contact us, http://www.contractuallyspeaking.co.za/contact.html or email us: philip@contractuallyspeaking.co.za

 

 

 

 

 

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