Legal System embracing the new norm

Legal system embracing the “new normal”

As Covid-19 sees organisations adapting and moving towards virtual or remote working, Phetheni Nkuna and Faatimah Essack of Lawtons Africa explore the ways in which the legal system has embraced this “new normal”.

By Phetheni Nkuna, Director at Lawtons Africa and Faatimah Essack, Candidate attorney at Lawtons Africa, on behalf of LexisNexis South Africa

In a recent urgent application before the Labour Court, South African Breweries (Pty) Ltd v Food and Allied Workers Union (FAWU), involving a section 189A(13) dispute, the union contended that the section 189A consultation procedure was unfair on the basis that the final consultation meetings were held via Zoom videoconferencing without FAWU’s consent and in the absence of facilitation by the CCMA.

The Court, however, held that the Labour Relations Act (LRA) does not prescribe the form in which the consultation process is to take place.

Whilst it is preferable to have face-to-face consultations, the Covid-19 pandemic has seen remote meetings become the “new normal”, in the interest of preserving health and safety and maintaining social distancing. Thus, consultation meetings via Zoom are fair against the backdrop of the Covid-19 pandemic and the new normal in which we find ourselves.

The judiciary has certainly embraced change and the fact that a new normal has set in. This started during lockdown alert level 5 with court hearings being convened through video.

In the beginning of June 2020, the country moved to lockdown alert level 3 which meant more business re-opened and, in certain instances, increased their workforce.

Once the lockdown is completely lifted, what will the world of work look like? The online social justice publication New Frame refers to this as “the intersection of a health crisis and an economic crisis [which] has produced the biggest crisis of capitalism and the global order since World War II”.

There is credence in an assumption that no sector of our economy has not experienced the impact of the novel coronavirus pandemic.

The unemployment rate for the first quarter of 2020 was forecast at 35%, a 5.9% rise from the previous year’s fourth quarter. Any optimism for improvement of this ghastly reality has declined significantly with the advent of Covid-19, with most economists painting a bleak picture. This negative outlook resonates in news reports about the business rescue of SAA, BP set to cut 10 000 jobs, the Edcon Group’s uncertain future, ArcelorMittal retrenchments, closure of Associated Media Publishing and Caxton and CTP Publishers & Printers which owns prominent brands such as Bona and Rooi Rose, just to mention a few.

Employment and Labour Minister Thulas Nxesi reported on 1 June that the Commission for Conciliation, Mediation and Arbitration (CCMA) had registered retrenchment cases affecting at least 28 000 employees between 1 April and 27 May 2020. Preceding this announcement, Gauteng Premier David Makhura on 19 May spoke of a “Covid-19 jobs bloodbath” which could impact as many as two million jobs in the country’s economic hub alone.

Covid-19 has certainly ushered in an era of uncertainty but also flexibility for many professions, and the legal system will need to catch-up to changing mindsets.

To access further insightful guidance around running a successful virtual working environment, visit the LexisNexis Virtual Working Resource page: https://www.lexisnexis.co.za/news-and-insights/virtual-working