The code of good practice states that dismissal must be a last resort. However, we cannot shy away from the effects of the ongoing global pandemic, coronavirus, within the scope of industrial relations. It can be stated that after the hard lockdown most employers are breathing through the wound since there is a shortage of work, lack of business, just to mention a few.
The unprecedented financial havoc caused by a shortage of work and lack of business has resulted in most businesses running a deficit. Subsequently, they become compelled to embark on retrenchments due to operational requirements, including but not limited to financial reasons and technology. It should be borne in mind that all the rights of the employees enshrined under the Labour Relations Act and Basic Conditions of Employment Act are still applicable amid the COVID-19 pandemic. Employers cannot just move the goalposts.
The objective of this article is to provide clarity on the implementation or application of short-time work (companies not falling under bargaining councils) in accordance with the prevailing laws of the Republic within the scope of industrial relations.
- What is short-time work?
Short-time work can be defined as a mutual, temporary reduction of ordinary hours of work, which can be applied or implemented under the following circumstances: a shortage of work, lack of business or any other relevant factors.
- Effects of short-time work
The employee’s ordinary working hours are reduced. As a result, they only get paid for the hours they worked.
- Overtime
The employees are only entitled to overtime pay after they have worked the minimum hours agreed upon in the contract of employment prior to short-time work period.
- Sick leave
It is my submission that sick leave should be paid as if there was no short-time work. The Act in this regard is not clear whether sick leave must be paid in accordance with the short-time work hours or ordinary hours.
- UIF
During short-time period, the employees are still bound by the terms of the contract of employment and deemed employees. Therefore, they cannot claim their UIF during short-time period.
- Implementation procedure of short-time work.
The employer must notify all the employees who will be affected by the short-time work timeously, before the consultation and give them reasons for the intended short-time work. Thereafter, convene a meeting to make his/her proposal.
The parties must reach mutual consent concerning short-time work since it changes employees’ terms and conditions of employment. The parties can agree to any period, which is reasonable and justifiable. Refusal of giving such consent by the employees does not constitute gross insubordination.
In the case of Independent Commercial Hospitality and Allied Workers Union and Others v Commission for Conciliation, Mediation and Arbitration and others (2015) 24 LC 8.18.1, the employer who was experiencing financial difficulty consulted with the employees and a trade union but did not obtain consent. Subsequently, he dismissed the employees for not working as per the new short time period. He felt that such failure constituted insubordination.
The Labour Court held that such short-time system was unreasonable since the employer, without the consent of employees, affected it. Refusal of employees to comply with such a system did not amount to insubordination. The employees’ dismissal was therefore found to be unfair.
Remedies available to employers:
Employers can embark on a retrenchment process based on operational requirements as opposed to short-time period, should the employees refuse to give consent to the short time system. Employers can also implement lockout.
Although we are living in these uncertain times, due to the ongoing global pandemic COVID-19, the rights of the employees, which are enshrined under the prevailing laws of the Republic within the scope of industrial relations, must be observed at all times.
About The Author:
Sabelo Sibiya is currently working as a Legal Advisor in our Labour and Consumer Protection department. He is a candidate attorney who obtained his LLB degree at the University of Zululand.
References:
- CCMA booklet – connold.co.za
- Short Time Work as an alternative to Retrenchment during the #COVID-19 pandemic by Fadia Arnold
- Industrial Relations in the Times of COVID-19: WHAT’S NEW ABOUT THIS “NEW NORMAL” – By Bongani Khanyile Ka Luthuli
- Can an employer unilaterally impose short time on employees in circumstances of distress?- Werksmans.com