EMPLOYMENT LAW UPDATE: HAVE YOU BEEN TREATED FAIRLY BY YOUR EMPLOYER DURING THE COVID-19 PANDEMIC?
If your employer intends to retrench you or if he has informed you that he is contemplating the restructuring of his operations during the COVID-19 pandemic, the employer must ensure that he is in compliance with the employment contract and the labour laws governing the employer- employee relationship in these circumstances. In terms of section 189 of the Labour Relations Act, a restructuring process is a joint consensus seeking process which necessitates consultations between employers and employees in which – from the very beginning – the employee has to be afforded an opportunity to be heard and can give input. Social distancing and the different lockdown stages are not an excuse for shortcuts in consulting with employees. And neither is the COVID-19 pandemic an opportunity for the employer to address underlying issues in the employer-employee relationship.
If your employer has requested you to work from home, he has to pay you your salary. He cannot unilaterally reduce your salary, and he can also not allocate leave days against the time period you have been working from home. The employer can allocate leave days, but then, leave is actually leave. Any salary reductions must be negotiated between the employer and the employees. The employer may not do as he pleases and he cannot have it both ways. In other words reduced pay but this the same capacity output as before the pay reduction.
The implementation of level 3 in the current COVID-19 lockdown situation has enabled a lot of companies to re-open their doors. If you have returned to work, have you found your workplace to be compliant with the Occupational Health and Safety Act, as well as with the now relevant health and safety directives as released by government during the COVID-19 pandemic? Your employer must conduct a proper risk assessment of the work environment and put measures, processes and materials in place which are suitable for your particular work environment and circumstances. The concrete measures to be implemented differ from workplace to workplace, and range for example from providing personal protection equipment, screening of employees for fever symptoms, putting in place emergency protocols, enabling social distancing, sanitizing and waste control measures and communication and training of employees. The employee of course must do his or her part in complying with the measures put in place by the employer, but the ball is very much in the employer’s court if he wishes to continue operations as per normal.
No matter how hard a business is hit by the COVID-19 pandemic, neither employment agreements, nor labour laws or health and safety laws and regulations have been suspended or can be suspended by the employer. The terms of an employment contract and the provisions of the relevant labour laws protect an employee against unilateral, unlawful actions taken by her or his employer. If an employer takes advantage of the current crisis to address underlying issues in the employer-employee relationship with the intention of shifting the goalposts or cutting ties, the employee has legal tools to protect himself or herself with. Moreover, the employer has a duty to protect his employees as much as reasonably possible if he expects the employees to return to the workplace.
For any information or a consultation on an urgent matter contact Heiko at 072 982 9430