Retrenchments during lockdown

Retrenchments during lockdown - Any dismissal, for operational requirements or otherwise, must be in accordance with the Labour Relations Act 66 of 1995, even during the lockdown period.

Written by Lebogang Kgope, Candidate attorney, Gerhold and van Wyk Attorneys and Conveyancers, for LexisNexis South Africa.

[Durban, 16 April 2020]

Nationwide Lockdown
On 23 March 2020, President Cyril Ramaphosa announced a nationwide lockdown. In addressing the nation, President Ramaphosa stated: “Our country finds itself confronted not only by a virus that has infected more than a quarter of a million people across the globe, but also by the prospects of a very deep economic recession that will cause businesses to close and many people to lose their jobs”. Even prior to the lockdown, it was foreseen that the economic impact would be severe and that many jobs would be lost.

Since the lockdown has commenced, many businesses have found themselves unable to meet their monthly obligations and are considering a reduction of staff.

Retrenchments During the Lockdown
Section 185 of the Labour Relations Act 66 of 1995 (“The Act”) provides that no employee may be unfairly dismissed. A dismissal must be for a fair reason and effected in accordance with a fair procedure.

Section 210 of the Act directs that if any conflict arises between the Act and the provisions of any other law save the Constitution, the provisions of the Act will prevail.

Whilst measures have been implemented by the State to assist employers in retaining staff, if an employer contemplates dismissing one or more of its employees for reasons based on operational requirements, it must comply with Section 189 of the Act.  The Act defines “Operational requirements” as requirements based on the economic, technological, structural or similar needs of the employer.

Conclusion
The Regulations and Directives do not permit an employer to deviate from the provisions of the Act, nor is there any prohibition on dismissing an employee for operational requirements. Any dismissal, for operational requirements or otherwise, must be in accordance with the Act, even during the lockdown period.