Mc Naught & Co
Has COVID-19 Become a Convenient Excuse for Dismissals?
After being on a lock down for a substantial period, the South African economy is finally getting into the swing of things, however businesses have had to do some serious internal restructuring, which for some, unfortunately, include the retrenchment of its employees.
Have employers followed the correct procedure as set out in the Labour Relations Act or are employers using the pandemic as an unfair advantage and hiding behind the pretext of “flattening the curve” ?
Section 185 of the Labour Relations Act (“LRA”) affords employees the right not to be unfairly dismissed or to be subjected to unfair Labour practices. Whilst retrenchment and declaring the redundancy of employees due to Covid-19 falls within the employer’s operational requirements and is fair, employers are encouraged to engage with the employee in the joint consensus seeking process as set out in Section 189 of the LRA and discuss other alternatives before considering retrenchment such as allowing the employee to work from home if possible or working short time.
The employer must send a Notice in terms of Section 189 of the LRA to advise of the dismissal and request a consultation with the employee/s to start the process. This is referred to as the joint consensus seeking process and is to ensure employees are empowered to engage with the employer on discussing:
1. Appropriate measures on:
1.1. How to avoid the dismissals;
1.2. Minimizing the number of dismissals
1.3. Change the timing of the dismissals and
1.4. To mitigate the adverse effects of the dismissals
2. The method for selecting the employees to be dismissed and
3. The severance pay for the dismissed employees
If there is a joint consensus on retrenchment, the employer may start the retrenchment procedure as set out in Section 189. A dismissal will be considered fair or legitimate, if it is based on reasons for misconduct, incapacity (i.e. either ill-health of the employee or poor work performance) or due to the employer’s operational requirements. Should an employer fail to prove that the reason for the dismissal falls within the ambit of any of the above and that the dismissal was done within a fair procedure period, the dismissal is deemed to be unfair in terms of the Code of good practice.
The purpose of the Labour Relations Act (“LRA”) is to promote social justice in the employment setting and encourage employees participation within an organization, and prevent an abuse of power and unfair advantage.
The aforementioned article is the interpretation of the law and the opinion of the writer and in no way constitutes legal advice pertaining to your particular matter. Please visit www.maclaw.co.za and contact our professional team for specialized legal service.