18 May: COVID-19 Communique: Employment Update – The Winds of Change

“When the winds of change blow, some build walls and
others build windmills.” -Chinese Proverb

COVID19-TERS Update

We are getting there….. slowly. The wrinkles are being ironed out – which however does not make our job any easier in terms of trying to keep up with yet MORE
amendments to the Directive!
One of our clients mentioned the other day that our little online Booklet on Covid19 and UIF has by now become a
Book – and indeed it has. Especially with the additional (helpful) documents added in the latest

update.

It’s all in the ‘Book‘, but by way of summary, here is what is new:

The UIF has published two
Guideline documents last week to assist with the practicalities around TERS applications and following up on claims that had been submitted. Copies of these
documents have been included in the back of the online Booklet. 

• How to apply for Covid19-TERS benefits
• What happens after the application

 A
very helpful document can be found on the
NEASA website (and has also been added to the Booklet) which deals with the most persistent problems around TERS claims, and what steps should be taken to address these, according to the DEL. Email addresses to
channel specific types of issues are provided.

  A
further amendment to the TERS Directive was gazetted on 15 May – although it had already been signed by the Minister at the end of April. (See also the discussion in this article from

Moneyweb)

• Provision is made for other ‘entities’ other than Bargaining Councils to assist with the claims and payouts. 
• Eligible employees who have been left in the lurch by employers who failed or refused to apply for TERS benefits on their behalf, can now apply to the UIF in person if
  the necessary requirements are met.
• The whole of the TERS directive, including all of the amendments, is effective retrospectively as from 27 March 2020. (Once the lawyers have had time to properly study
  the implications of this, we might have a whole new wave of issues…….. just saying.)

WORKPLACE ISSUES

Labour Relations

The physical activities of unions and employers’ organisations are slowly resuming. A

Directive on Labour Relations was issued by the Department of Employment and Labour on 11 May 2020, providing for the circumstances and safety measures that would be applicable when their offices physically open,
and in relation to workplace visits.

Employers should take note of the provisions relating to shop stewards to facilitate the performance of
their duties in the workplace, such as online access to communicate with the union office.

The CCMA
will be opening this week and will be accessible to the public from Wednesday, 20 May – subject to proper screening, social distancing, sanitising and
the wearing of masks. The number of persons allowed into the building or per venue may also be limited. Parties who object to attending at the CCMA for a hearing under these circumstances, must lodge an objection in writing and provide reasons for doing so.
The CCMA will then take a decision in this regard. The full notice is available from the

CCMA’s website.

Health, Safety and Compliance  

Workplace safety and readiness are at the forefront of everyone’s minds at the moment – and it can be
daunting.
Remember, however, that the employer’s obligation is to prevent/limit the spread of the virus – not to stop it entirely. Of course everyone hopes for a 100% prevention, but that is unlikely. So do a
risk assessment for your business and do what is reasonably practicable in your circumstances, within the framework of the official directives. 

Our list of
example policies, templates and toolkits is growing – have a look on our
#HelpingYouWork site to find what you need to be compliant, safe and efficient as we ‘phase in’ our new-look workplaces! Smaller employers (fewer than 10 employees) may have a simpler process, whilst there are additional
reporting requirements for large employers with more than 500 employees. The process entails, in some variation or another, the following elements:

1.  Appointment of a Compliance Officer
2. Conducting a Risk Assessment in terms of the OHSA
3. A written ‘back-to-work’ Policy
4. Workplace Plan – which is basically an SOP in response to the risk assessment on measures to address the risks that had been identified. It includes the phasing in of staff, special
   measures for vulnerable employees, social distancing measures, medical screening as well as the various health and safety protocols according to the OHS Directive (including sanitising, ventilation and personal protective equipment).
5. Communication to, and training of, employees on implementation of the Plan
6. Appointing a Manager to address workers’ concerns and keep them informed; and to consult with Health and Safety Reps (depending on the size of the employer, this could be the same
   or a different person than the Compliance Officer)

Also visit our

Health and Safety Smartlist for valuable articles and insights. There are curated links to information hubs and specialist websites with really great resources to assist in this process.

Mental Health

This is something that is easily overlooked and forgotten – yet it can make a world of difference not only to our own well-being, but also to our resilience, our efficiency, our ability to cope, to help others and to lead.  Anxiety and uncertainty abound in
this time – and it affects everyone, from the top down.
Below are some food for thought on this topic. 

The Question about Jobs and Money

In South Africa, it is settled law that an employer could, through a proper consultation process, propose changes to employees’ terms of conditions of employment as a measure to avoid retrenchments and to remain a viable business. [See our previous

Blog Post here for a discussion of this.] Should employees refuse to agree to such changes, they could be retrenched – to make place for new employees who are prepared to accept those terms and conditions. This
has been confirmed by the Labour Appeal Court last year in the case of NUMSA v Aveng Trident Steel [2019] ZALAC 36.

This is however not an easy decision for any employer to make, nor is the process likely to be a smooth one. Any proposed changes are likely to be met with resistance by employees and unions – especially if it hits their pocket, and understandably so. For the
employer, losing experienced staff and employing new people may not be a good operational decision – and financially, there is the issue of severance pay packages which may be beyond the ability of the employer to pay, especially now (although the LRA does
allow for forfeiture of severance pay if the employee refuses a reasonable alternative to retrenchment).

So, is there another option? Do employers, having exhausted consultations on all possible alternatives to retrenchment and being unable to reach agreement with employees on necessary changes to their
terms and conditions of employment, have no other choices than (1) retrenchment or (2) continuing with an unsustainable situation that is likely to see the business in ruins before long?

In a recent
article by Cowan-Harper-Madikizela, labour attorney Neil Coetzer points out that employers are entitled to unilaterally change employees’ conditions of service in order to save jobs if this stage of the process
is reached. He refers to precedents in our case law where the changes proposed by employers were bona fide and genuine attempts to avoid retrenchment and were then implemented unilaterally when agreement with employees could not be reached, instead of resorting
to retrenchment.
Coetzer further argues that there is in fact a duty on employers to consider the unilateral implementation of such changes in order to avoid retrenchments, and that this might be a factor in considering the fairness of an ultimate retrenchment.

Let’s consider the situation where the employer duly implements contentious changes to terms and conditions of employment (e.g. salary reductions) as a last resort to avoid retrenchments and to keep its business sustainable. Apart from the legal arguments,
there are also other implications to consider.

Legally:
At this point, there have been no actual dismissals – so the reasonableness of the changes that were implemented does not come into play; nor can the employees refer unfair dismissal disputes or give notice to strike in the case of a large scale retrenchment. Employees
would have a claim, however, relating to a unilateral change in conditions of employment – which would allow unions to call a to strike to have employees’ original terms and conditions restored.
The employer could potentially apply for an interdict to prohibit the strike on the basis that the changes were effected through a lawful s189-process – and it could be argued, suggests Coetzer, that the employer should not be penalised for avoiding retrenchments
and that allowing strike action in circumstances such as this would disincentivise employers from trying to save jobs. There is however no legal precedent for this approach, so we will have to wait and see what the courts have to say about it.

Financially and operationally:
The situation above would mean that an employer is potentially either faced with a strike (more losses and the inability to start rebuilding an already floundering business); or paying legal fees for an interdict application, which may or may not be successful.
Either way – even if the strike is interdicted; or there is no strike and employees are compelled to work under the newly imposed changed terms and conditions – the employer is bound to have to deal with many disgruntled employees who are recalcitrant and unhappy,
and potentially rather harming the business and employee morale instead of pulling together to help save the business.

So – there are no easy answers to this situation. It is a catch-22 for both employers and employees: damned if you do, and damned if you don’t. There can be no win-win or ideal resolution. Nobody wanted this situation; nobody wished for it; nobody deserves
it – yet here we all are. All we can hope for, are for rational minds to prevail – for transparency and bona fide attempts from employers, employees and unions to find the best possible solution to minimise the fallout. Maybe this is also a time that is ripe
for a ‘reset’ in the adversity that has plagued South African labour relations for so many decades.

“When the winds of change blow, some build walls and others build windmills.“

Send us your feedback – we’d love to engage with you.
Let us know how you are holding up.
Above all, stay safe!

Regards
Judith Griessel