While the South African government is working on new sick leave rules during the Covid-19 epidemic, countless businesses from start-ups to corporate are faced with unprecedented challenges. Restaurants and bars have reduced business hours resulting in financial challenges, factory workers are laid off, domestic workers are told to stay at home, often without pay. The usual principle of “no work, no pay” puts enormous stress, fear and uncertainty on the South African labour market.
Important questions arise in terms of labour law, for example:
- Could affected employees be dismissed?
- Can retrenchment be implemented if operational requirements are affected?
- Can a new or changed shift system be implemented in order to minimize contact between employees?
- Can employees be required to work from home or can employees demand this?
- What are the effects of health legislation (OHSA, Act 85 of 1993) in these circumstances?
There can be little doubt that the dismissal of an employee only for the reason that he/ she contracted the coronavirus, would be an automatic unfair dismissal in terms of the LRA,1995. The recommended period for recovery (isolation) is short: 14 days, and this could hardly constitute an acceptable and fair reason (as a first resort), for dismissal related to incapacity. Paid sick leave (normally 6 weeks in a 3 year cycle) should apply. It should also be kept in mind that current emergency measures in South Africa may demand compulsory quarantine where relevant.
Dismissal based upon the operational requirements (which is defined as ”ETSOS” : economical, technological, structural or similar reasons), would not be justified if the contracting of the virus is the sole reason for contemplated dismissal. This would also constitute an automatic unfair dismissal as mentioned above. However, should the economic position of an employer be affected negatively in the sense that business is materially affected (for example tourists canceling trips in the hospitality/tourism sector or customers discontinuing business in the manufacturing sector due to the panic associated with the situation), retrenchment based upon operational requirements could certainly become relevant. The normal requirements in terms of labour law would apply in these cases: proper, prior meaningful consultation, steps to avoid or alleviate dismissals, alternative options, proper selection criteria (eg. “Lifo – last in first out”) and payment of appropriate severance pay (at least one week pay per completed year of service).
3. Introduction of new or amended shift systems
In view of prevailing circumstances regarding Covid-19, the rationale behind implementing new or amended shifts in order to minimize contact between employees, is absolutely sound and there will not be much legal ground to challenge this (subject to what follows below). Naturally, a consultation process should precede the implementation of the shift system where it did not exist before or is amended, but this needs not be protracted and should be very brief in view of the urgency related to the matter. In the absence of a consultation process, the introduction of a new/changed shift system unilaterally would be seen as a unilateral change in conditions of service in terms of the BCEA, 1997 and the LRA, 1995. But consultation does not mean that the employees affected should agree: all that is required is to give sufficient information about the reason for the step, and to allow the relevant employees the opportunity for response and input. In view of the exceptional circumstances, this process could well be concluded within a couple of days.
4. Employees working from home
This is of course not an option for many operations, but where this can be implemented, the employer is well within its rights to allow the employee to work from home at its discretion, for example in the corporate environment. The employer should set clear rules and guidelines in this regard which could include access to communication facilities, e.g. telephones, Wi-Fi connection; the use of project management software, time sheets etc.
Employees however, do not have a right to demand working from home. When working from home is considered practical, this should still only be implemented by consent from both parties.
5. Safety and health legislation
The Occupational Safety and Health Act, 85 of 1993, puts an obligation on employers in South Africa to establish, and maintain as far as reasonably practicable, a working environment which is safe and without risk to the health of its employees. In order to avoid risk (and even accountability), employers are strongly advised to introduce the necessary contingency arrangements and to communicate this with employees, for example prohibition of physical contact, provision of sanitizer products, limitation on meetings/gatherings, flexibility in respect of work arrangements and perhaps relaxation of sick leave policy and obliging employees to work from home or to stay at home should they feel sick.
We wish you well.
Stay safe, stay health, and care for each other.
If you seek legal advice with regards to Coronavirus/ Covid-19 and Labour Law, please contact:
Adv. Jacques du Preez, jdupreezlawATgmail.com (International Human Rights Lawyer and Labour Specialist, 15+years experience)
Dr. Lukas du Preez (Doctorate in Labour Law, labour law practitioner for 30+ years) dpaATlantic.co.za or
Barbara du Preez-Ulmi, Postgraduate in Labour Law with 20 years of experience in managerial and executive positions, labourflawsATgmail.com