Panic vs COVID-19 – Where to go from here
In writing this article, I can understand that we as employers, are adding the COVID-19 on our SWOT analysis as a true threat to the our businesses; however, the panic of staff and uncertainties around job security could blur your staff productivity whilst on leave, working from home or queuing to buy food.
The problem with this is, that many businesses realise that if they implement retrenchments, they will not only lose valuable skills but will also reduce the buying power of the public. This would then further reduce the business’s ability to earn an income even when this blows over.
Many businesses with stressed finances are therefore seeking, in consultation with employees, ways of avoiding retrenchment. Possible ways include and that we urge employers to consider:
1. Granting special leave to employees
2. Allowing staff to utilise their annual leave
3. Working short time or
4. Pay cuts and temporary layoffs.
Other avenues available is that of the Department of Labour’s Corona Disaster assistance schemes. While the operation of these schemes is still unclear it appears that employer’s that temporarily lay employee’s off without any pay can apply to the Department of Labour’s for TERS benefits through which employees may qualify for state payments of up to R 17,000.00 per month for a maximum of three months. the Department of Labour’s COVID 19 TERS EASY AID guide states that employers may email their TERS benefit applications to Covid19claims@labour.gov.za together with the following documents:
• Letter of Authority granting permission to an individual specified to lodge a claim on behalf of the company
• An agreement between the state and the employer
• Critical information from the employer Evidence/payroll as proof of last three months employee(s) salary(ies)
• Confirmation of bank account details in the form of certified latest bank statement. Employers that need information regarding available funding can enquire via the following email address: covid19ters@labour.gov.za or phone 012 337 1997.
It appears that the new TERS benefit is confined to cases where employees are not been paid at all over a specific period. The Department of Labour’s guide states that it will also assist through other UIF benefit schemes that already exist including Illness and Reduced Work Time benefits. Where employers are successfully able to assist employees with obtaining these benefits this could go a long way to alleviating their financial hardships and keeping the business going.
Employers are warned that, where retrenchments are truly unavoidable, these must be implemented according to the requirements of section 189 of the LRA; whereby it clearly states that the process is a “joint consensus seeking process, to avoid or minimise the effects of the intended retrenchment”. Remember the process is one of consultation and not negotiation, there is no duty to agree on anything. There is however a duty to engage in a meaningful joint consensus process as stated above. If you however cannot agree to one or all of the points, the employer still has the right to proceed with the retrenchments.
At Labour Court the employer has the duty of proving that:
• There was a genuine and valid reason for retrenching
• The employees chosen for retrenchment were fairly chosen
• The retrenchment procedure as laid down in the LRA has been followed properly and in good faith by the employer, and the process (items) discussed was exhausted
• The employer has shared with the targeted employees (or their representatives) all documentary and other information pertinent to the retrenchment.
With the government aid released, employers will, as per the above, truly have to prove that all avenues were considered when dismissing employees due to operational requirements.
Keep in mind, the courts see retrenchments as no- fault terminations. In addition, the unemployment rate in South Africa is extremely high making it close to impossible for many retrenched individuals to find new jobs. For this reason, the courts have no hesitation in protecting the rights of retrenched individuals and making employers pay heavily where they deviate from the law.
In this current state of Pandemic, #Panic-demic, we urge employers to take the necessary pre-caution in weighing the current experience and trust that you have in your staff vs the potential savings of proceeding with retrenchments.
Should you require assistance in terms of the above or any other HR / Operational issues, you are more than welcome to contact our experts at info@grokon.biz or call me directly on 082 576 4525.
By Herman van der Merwe, CEO of grok consulting (HR Operations Specialists). He may be contacted on 082 576 4525 or on e-mail address: herman@grokon.biz. Alternatively go to: www.grokon.biz