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South Africa moved back to Adjusted Level 3 of lockdown restrictions at midnight on 28 December 2020. This was in response to the resurgence of the COVID-19 pandemic albeit in a newly discovered variant which, experts say is more infectious.
Since the adoption of an adjusted approach to the restrictions, the government has remained wary of the need for economic activity to continue realising that COVID-19 will likely be here to stay.
A balanced approach to economic activity and reducing avenues for the spread of the virus has seen businesses being encouraged to adopt measures that feed into this approach.
It is an acceptable fact that one way or the other, most businesses have seen revenue streams depreciating and to stay afloat, desperate measures have had to be taken on numerous levels.
Employers have had to make difficult but necessary adjustments with regards to operating expenses to justify opening shop. Unfortunately, top of these expenses would be human resources.
The response to this dilemma has been multi-faceted from business to business, although the available options could only be either of the approaches discussed below, specifically with regards to employees. The BCEA and LRA are both applicable.
As pointed above the adjusted approach to restrictions encourages the continuity of businesses operations albeit under controlled measures. For employees who can discharge their duties remotely or work a shorter working day, it is encouraged to reduce the number of people in the workplace at the same time thereby ultimately reducing people on the move to and from work each day.
For the employees, whose responsibilities can only be discharged in the workplace, the number of employees in the workplace at the same time would have to be controlled and strict adherence to social distancing be enforced. Other such employees may be placed on paid leave. The employees whose leave has already been exhausted may be put under unpaid leave, coupled with sufficient justification.
Due to the fact that the options of working remotely, shorter working days, or a demotion to reduce the wage bill and avoid dismissals all result in decreased working thrusts and revenue, negotiations of reduced pay may be conducted between the employer and employees or the trade union before implementation.
In instances where the COVID-19 restrictions are of a definite period (e.g 21 days) and the responsibilities of the employees can only be discharged in the workplace, the employer may opt to consider temporary lay-offs until the duration of the lockdown period after which business can resume depending on the circumstances.
The impact of COVID-19 and the subsequent measures taken by the government to curb the spread have had grave effect on some businesses which, by all possible means could no longer generate income or continue in operation.
Employers in these instances find themselves not able to retain jobs for their employees and the options available have been drastic.
If a business finds itself in such a scenario, what are these options that it can consider? Alternative considerations such as demotions, leave and shorter working days should be exhaustively considered, firstly.
Should that not be implementable, temporary layoffs can be considered next, depending on the adjustment of the lockdown restrictions. However when these options are not possible the employer’s only option will have to be retrenchment as provided under Section 189 of the Labour Relations Act 66 of 1995, which provides for dismissal based on operational reasons, economic in this instance, after an extensive consultation process.
Despite the foregoing, government came up with interventions to cushion businesses from the harsh effects of the COVID-19. The Disaster Management Tax Relief Bill (2020) and the Disaster Management Tax Relief Administration Bill (2020) were put forward in parliament seeking to alleviate decreases in revenue for SMEs.
PAYE and Income Tax remittances could be delayed without penalties. The Debt Relief Fund was structured to provide relief with regards to existing debt and repayments, whilst other relief measures were set up in the private sector e.g South African Future Trust.
The COVID-19 pandemic left many businesses either incapacitated or crippled to operate normally, leaving hundreds of thousands of jobs on the line. The above discussion shed some light on options that businesses can take in response to the harsh conditions presented by the pandemic.
The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter. One should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The contents of this site contain general information and may not reflect current legal developments or address one’s situation. We disclaim all liability for actions one may take or fail to take based on any content on this site.
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