OPTIONS AVAILABLE POST LOCKDOWN
Although we are currently still in the midst of the national lockdown and trying to come to grips with it, employers will have to start facing the stark realities of life after COVID-19.
When the lockdown is lifted, employees will return to work and will be entitled to claim their full salaries and benefits as per their respective contracts of employment.
However, employers will be far from a ‘business as usual’ scenario as they will not be in the same financial or business position as pre-Covid 19.
Therefore, employers may have to make some difficult decisions in order to bring conditions of employment in line with their new business reality.
In a situation where employers need to make drastic changes to their businesses in order to ensure the survival or longevity thereof, we recommend that employers consult their employees regarding the proposed changes in an attempt to reach an agreement.
Should the employees not agree with or accept the changes proposed by their employer, the employer essentially has the following two options available:
• implement the changes unilaterally; or
• start a retrenchment process in terms of Section 189 of the LRA.
Where an employer has consulted employees regarding changes and the rationale behind those changes, and employees do not agree, the employer may implement those changes unilaterally.
However, if the unilateral changes are not accepted employees have the following recourse available:
• strike action;
• unfair Labour Practice challenge; or
• breach of contract challenge, either by interdicting the changes or claiming damages in the Labour Court or High Court.
An employer will have to assess the impact each of these actions may have on his/her business, versus the viability and survival of the business on an individual basis.
Employers may dismiss employees based on operational requirements due to economic, technological or structural needs.
An employer may find that, due to shrinkage in the business, he/she does not need or cannot afford all of his/her employees anymore. He/she will therefore be entitled to initiate a section 189 process and retrench the redundant or unaffordable employees based on operational requirements.
However, in a situation where an employer requires the services of all its employees but cannot afford them on their current conditions of employment, he/she should consult with employees on the proposed changes. Should the employees refuse to accept such changes, the employer can again initiate a section 189 process.
Employers must be able to show that the changes were necessary for the survival of the business and that the retrenchment is due to a genuine operational requirement and not due to the refusal by the employees to concede to the changes.
Employers must give notice to employees and consult employees as per the requirements of Section 189 of the Labour Relations Act.
If the employer envisages that reduction in staff or changes in conditions of employment will be required post lockdown, we advise to already start with this process during the lockdown period, as a section 189 process can be rather lengthy in nature.
Employers should give notice to employees and their trade unions by whatever means possible. This may include personally, via email, SMS and or WhatsApp.
These processes are of a very technical nature and we urge employers to contact their nearest NEASA office for further assistance regarding the above implementation.
NEASA 24/7 NATIONAL HOTLINE: 086 016 3272
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