Q&A with Lungile Mtiya & Associates: Employment during Covid-19

Editor

This week we have a Q&A session with Lungile Mtiya to understand all the relevant questions that people have during this Covid-19 pandemic. All the things you should be aware off when it comes to lockdown and your employment.

 

What are the key things employers should consider before undertaking retrenchments during lockdown?

  • When the employer contemplates dismissing one or more employees for reasons based on the employer’s operational requirements, the employer must consult in terms of Section 189 and this must be in accordance with the Labour Relations Act 66 of 1995 (The Act) as amended. 
  • Alternatives to retrenchment like a shorter week, working from home, taking unpaid leave or salary cuts should always be considered first in order to avoid retrenchments.

 

Can companies retrench an employee without engaging him or her?

  • No, that will be against the law and the dismissal will be both procedurally and substantively unfair.
  • Employers need to take all the necessary steps as dictated by the Labour Relations Act, section 189 to ensure that the retrenchment process is adhered to.
  • Full consultation must first take place between parties and both parties must engage in a meaningful joint consensus-seeking process and attempt to reach consensus.

 

What are your rights when you are retrenched during COVID-19 lockdown?

  • Employees must be consulted to reach a consensus on a number of issues.
  • Presented with alternatives to retrenchment to find solutions that will work for both the employer and the employee.
  • If the environment is unionized, the employee must be allowed time to consult with the union and the employer must also consult with the registered trade union.
  • Assistance with updating of CVs, allowed time off to attend interviews.
  • All statutory monies due to the employee must be paid, inclusive of severance pay and leave monies due to the employee.

 

As companies start opening for business again this week, can I be retrenched or let go if I unable to go back to work due to a sickness or fear of contracting the corona virus?

  • An employee should inform the employer of his or her fear or inability to report for duty in order to avoid dismissal for absence without leave.
  • Employer should consult with the employee via mobile or conference calling or any form of communication to hear the employee’s concerns.
  • Communication should continuously take place and clarity should be afforded to employees who have fear for their fears to be laid to rest.
  • Compliance with the Health and Safety legislation in the workplace should be prioritized by the employer as the workplace should be safe and well prepared for the gradual return of employees to the workplace.

 

Can my employer force me to work from home during this lockdown?

  • Yes, I think they can especially if the company can afford to ensure that laptops and access to data are made available to employees to ensure that profitability or bottom line of the business does not fail or suffer.
  • Working from home could be considered a viable alternative depending on the nature of the job one holds.

 

Can I insist on working from company premises to access the required facilities? 

  • Since the restrictions have been relaxed, employees can ensure that all required measures are taken into consideration like sticking to a 30% maximum of staff being at work at any given time.
  • Employees should also ensure that they allow for themselves to be scanned and to wear masks at any given time.

 

What can employers do for their employees to avoid retrenchments during lockdown?

  • Allow employees to work from home.
  • Encourage employees to take annual leave.
  • Allow employees to take shorter work periods or give reasonable notice to employees for salary cuts, including claiming unemployment insurance fund from the Department of Labour.

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