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THE IMPLICATIONS OF COVID-19 ON EMPLOYMENT IN SOUTH AFRICA

[Wednesday, March 18, 2020 16:52:41]

 

1.    The arrival of COVID-19 in South Africa has caused mass panic, especially since the announcement made on Sunday 15 March 2020 by President Cyril Ramaphosa.

2.    It is undeniable that there are going to be serious implications, either directly or indirectly, for all South Africans as well as the negative economic impact that will impact the country at large.

3.    From an employment perspective it is important to note that an Employer is obliged to “provide and maintain, in as far as it is reasonably practicable, a working environment that is safe and without risk to the health of his employees.”[1]

4.    It further particularly specifies that an employer’s duties include “taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment[2] and “enforcing such measures as may be necessary in the interest of health and safety.”[3]

5.    It is clear that these duties that are placed on an Employer are onerous duties aimed at protecting Employees and mitigating risk to the health and wellbeing. Various other pieces of legislation contain similar types of obligations on Employers within specific industries.

6.    Each employer will be faced with different circumstances and will need to determine what is reasonably practicable within their specific environment. This is a factual question which will completely differ from employer to employer.

7.    Unfortunately, many employers are finding themselves in the invidious position where the present COVID-19 circumstances are dictating that business operations are by necessity either scaled down or closed completely on a temporary basis.

8.    For some Employers contingency measures such as Employees working remotely from home is a viable and reasonably practicable approach which may be applied. Unfortunately, for most Employers and Employees this will not be a reasonable practicable option.

9.    Unfortunately, due to the circumstances at hand, some employers are going to be forced to consider a reduction of their workforce in order to stay operationally viable. When an employer considers undertaking a retrenchment process this must be carefully considered and a proper consultation process with proper reasons must be provided to justify the reduction in workforce.

10. Retrenchments cannot simply be implemented for the convenience of an employer at a whim. Retrenchment dismissals must be a measure of last resort.[4]

11. In the event that an employer finds itself in the position that its operational requirements require a reduction in labour costs and possibly retrenchments the Employer must undertake a proper process in terms of section 189 or section 189A of the Labour Relations Act, 66 of 1995. Proper consultation must occur and alternatives to dismissal must be properly considered.

12. In some cases it will be possible for parties to negotiate alternatives to dismissal if both parties make compromises for the greater goal of retention of employment and sustainability of the business in the long term.  

13. If no alternatives exist an employer, whose operational requirements genuinely require retrenchments, may be forced to retrench employees who will be entitled to claim benefits from the Unemployment Insurance Fund however these benefits will not equate to the full income that the employee earned while employed.

14. In cases where alternatives do exist but they require a change to the Employee’s terms and conditions but the employee refuses to accept the proposed changes it may be acceptable to terminate the employment relationship if it is operationally justifiable.[5]

15. All decisions taken should be taken as calmly as possible during this difficult time as they will have long term implications.



[1] Section 8(1) of the Occupational Health and Safety Act, 85 of 1993 (as amended)

[2] Section 8(2)(b) of the Occupational Health and Safety Act, 85 of 1993 (as amended)

[3] Section 8(2)(h) of the Occupational Health and Safety Act, 85 of 1993 (as amended)

[4] Mweli and Another  //  MTN Group Management Services (Pty) Ltd, unreported judgement of the Labour Court under case number JS610/16 dated 22 May 2019

[5] National Union of Metalworkers of South Africa (NUMSA) obo Members v Aveng Trident Steel (A division of Aveng Africa) (Pty) Ltd and Another (2018) 39 ILJ 1625 (LC) and National Union of Metal Metalworkers of South Africa and Another v Aveng Trident Steel (A Division of Aveng Africa Proprietary Limited) and Others (2019) 40 ILJ 2024 (LAC)


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