Picking up the pieces and looking to the future

Following a week of violent protests in KwaZulu-Natal businesses which were required to shut down are now, together with their communities, picking up the pieces and are looking to the future.

Written by Adrian Parker, Attorney at Futcher & Poppesqou Attorneys, for LexisNexis South Africa

In order to assist our clients and communities, we have prepared the update below.

Leave provision

Each employer’s situation will be different, and therefore, each employer must first look to the applicable policy, contract, and/or collective agreement. In the absence of specific provisions and requirements, it would appear that the position is governed by general principles of labour law.

Sometimes the situation which applies where employees are absent from work without leave is one of “no work, no pay”. However, given the nature of the absence from the workplace and that, had employees tendered their services, workplaces that were closed could not have accepted such tender, it could be an option (in respect of the employees who were not only absent from work but also unable to report to work) to allow employees to take paid annual leave for the week that economic activities were so dramatically disrupted.

Should an employer elect to go this route, it could allow employees who have exhausted their annual leave entitlement to dip into “negative leave” that will be set off as against future annual leave entitlements as and when they become available to the employees. Such a position would allow for continued economic activity and support of employees, however, such a decision would be subject to an employer’s financial ability to do so.

Where appropriate employers may implement a “no work, no pay” position for this week but must be done lawfully, and in accordance with applicable policies, contracts, and/or collective agreements.

The situation is different to circumstances where employees were able to work from home – in such circumstances employees could be paid as normal to the extent that they were able to work as normal. Employers could consider pro-rata pay in respect of pro-rata time worked.

Whatever course is taken, engagement with employees and compliance with the law, policies, contracts, and/or collective agreements is crucial.

Picking up the pieces

Businesses should now look towards sustainability and recovery in order to restore pre-12 July 2021 productivity levels. In these circumstances, it is possible that an employer may have a temporary reduction in staffing requirements until productivity is able to return to what it was before 12 July 2021.

In these circumstances, employers may not wish to retrench staff, but may need to temporarily change operations in response to decreased productivity by way of, for example, “short-time” – this action may, depending on circumstances, be taken as a change to terms and conditions of employment. And therefore must be approached lawfully, in compliance with labour legislation, policies, contracts, and/or collective agreements.

As a final alternative, it may be necessary to implement a section 189 process (“restructure” or “retrenchment”) on the basis of the operational needs of the business in accordance with the Labour Relations Act.

Adrian Parker

Attorney at Futcher & Poppesqou Attorneys

This update does not constitute legal advice and does not purport to be a detailed or complete explanation of the subject matter.  Should you require legal advice or wish to take steps in response to this summary, you are advised to contact a qualified professional.