By Siyabonga Zondi – Intern, Durban Office
In the most unequal society in the world, which is currently going through a recession, perennial power cuts and one of the highest unemployment rates in the world, a deadly communicable virus outbreak is the last thing South Africa needed. Apart from the lives that may be lost, a major area of concern is an economy, which was already on a declining trajectory prior to the outbreak hitting South Africa’s shores, being made more vulnerable than ever and bordering on collapse. The people who will bear the brunt of this are the poor working class, who may be exposed to mass dismissals, unfair labour practices and a flouting of the basic conditions of employment.
This then begs the question: what role does the Labour Relations Act 66 of 1995 (LRA) and the Basic Conditions of Employment Act 75 of 1997 (BCEA) play in the wake of the COVID-19 outbreak? Do employees still enjoy the protection afforded by these two pieces of labour legislation, even in a time where employers may not be in a position where they are able to meet their obligations towards their employees?
Among the most pressing concerns by most employees is whether they can be dismissed due to contracting COVID-19. In terms Schedule 8: Code of Good Practice Dismissals, an employer is obligated to investigate the extent of an illness if an employee is temporarily unable to work. If the illness may result in a prolonged absence from work, alternatives to a dismissal must first be considered. The factors that should be taken into account when considering alternatives to dismissal include the seriousness of the illness, the period of absence, the nature of the employee’s job and whether a temporary replacement may be secured. Throughout the process the employee is to be afforded an opportunity to make recommendations. If all processes have been followed and no suitable alternative to dismissal is found, the employer would then have an option to dismiss the employee.
There are also situations where businesses may find themselves having to dismiss much of their workforce due to operational requirements. Dismissals based on operational requirements are carried out in terms of section 189 of the LRA. These requirements can be defined as technological, structural, economic or similar needs of the employer. The recommended recovery/isolation period for a person who is deemed to have COVID-19 is 14 days, which in itself would not justify a need to retrench the employee. This position would significantly change, however, where an employer would have several employees being infected and requiring time away for isolation or recovery. In this situation a retrenchment based on operational requirements would be necessitated.
The Occupational Health and Safety Act 85 of 1993 (OHSA) obligates an employer to maintain as far as reasonably practicable a safe working environment that is without risk to the safety and health of its employees. This, however, does not mean that an employee may refuse to come to work in fear of contracting COVID-19. Employees who stay away from work may be required to furnish reasons for their absence, and failure to provide them may result in the employee facing disciplinary action.
A point of much debate and uncertainty for many employees is the “no work, no pay” principle. To pay employees for work done is one of the obligations of the employer, but what happens if the employees show up at work but are unable to work for some reason or another because of COVID-19? In such a situation the employer is obliged to pay the employees, as they have made themselves available and shown up at work. The fact that something beyond their control has inhibited them from performing their duties should not result in the employees not being given their due remuneration. The employer may, however, have recourse to the temporary layoff of employees where normal business operations may not continue.
They say every generation has a war that it must fight. In the past it was the attainment of freedom and equality, both in general and in the workplace. Our labour legislation is now very liberal in its nature and promotes equality. The battle we now face is one of decreasing unemployment rates, and increasing the quality of life of all employees, in the wake of a weakened economy and a dangerous communicable virus.