by Michael Bagraim
pandemic and the lockdown have not in any way affected our labour laws, nor affected the implementation of the Labour Relations Act and the Basic Conditions of Employment Act.
We do have some new regulations put out by the Ministry of Employment and Labour, and experiencing many and varied structural changes in the workplace. This unprecedented move has led to the creation of a strange situation where practices which have not been tested have to implemented.
As we went into the very first lockdown last March, the entire labour relations arena was faced with an upheaval this country has not seen for literally a hundred years.
Businesses were summarily shut, staff were sent home and there was a question as to whether the staff were forced to take leave, or whether they would remain on salary, because they were told to stay at home due to no fault of their own.
At that stage, the minister of Employment and Labour said categorically, that the staff had to be paid by the employer and that they could claim back some of that payment through the emergency funding being paid to the employers during the pandemic.
This statement seemed to be supported by the director-general of the Department of Employment and Labour and many labour lawyers at that point said the minister was correct.
I, among many other labour lawyers, said that the employer would not have to pay their employees on a strict interpretation of the Basic Conditions of Employment Act (BCEA).
Eventually, after a few weeks, it became clear that the minister’s interpretation of the necessity to pay was incorrect, and that the employers could wait until the Ters payment (the emergency funding from the UIF) was made and distributed.
Over and above this, many employers structured deals with the employees by paying them a certain percentage of their salary for those first three months of the pandemic.
Many of these arrangements had to be revisited after the three months as it became clear that it wasn’t sustainable in the long term.
As it happens the lockdown in various forms will be around for at least 12 months. We have seen an unprecedented amount of businesses being closed and liquidations have been at an all-time high.
During the first period of the lockdown, the ministry of Employment and Labour said that at least 2 million people lost their jobs, and we are predicting that at least 5 million people would have lost their jobs permanently once the lockdown is completely lifted.
We entered into the pandemic era with one of the worst employment rates in the world, and it looks like we are going to add at least another 5 million to the original 10 million unemployed.
This unemployment has put enormous pressure on the funding invested by the UIF, and also put pressure on the various government departments falling under the Department of Employment and Labour.
We are seeing thousands of people being retrenched without businesses following the full structure of Section 189 of the Labour Relations Act. We are also seeing businesses telling their staff that they can’t afford to pay the full severance payment. Both these approaches are wrong.
There has been no suspension to any of the labour laws and in particular, the consultation process as outlined, must be adhered to by the letter of the law. Some employers are taking advantage of the situation and having retrenchment programmes during the pandemic and using it as a cover to try and restructure their businesses.
Employers have to be reminded that there must truly be operational requirements for any retrenchments and these operational requirements must be able to be tested. It is not fair to ask the staff to take a cut in salary with a plan in mind to retrench them at a later stage, and using the diminished salary as the baseline for the severance package.
This is duplicitous. Another mean trick played by employers is to place their staff on unpaid leave using the lockdown as an excuse, and thereby getting them eventually to resign because they can’t continue without a salary almost indefinitely. Again, this is duplicitous.
I have come across schemes of this nature and only when pointing out the evil in the system have I been able to reverse it. Every employee has to carefully test the reasons for the lower salary and/or the reasons for possible retrenchment.
Employees have to remember that they can challenge the diminished salary imposed unilaterally, and certainly must challenge a retrenchment exercise if they believe it is not entirely honest.
* Michael Bagraim is a labour lawyer. He can be contacted at [email protected].
** The views expressed here are not necessarily those of Independent Media.
Cape Argus
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