Hopefully, at some point in the near future, the COVID-19 related lockdown will be uplifted. Many employers and employees alike will start returning to the workplace and attempt to put back the pieces of the damage caused by the COVID-19 pandemic.
Employers will, however, need to be mindful of the possible labour disputes that may be referred once employees return to work after the lockdown. Currently, the CCMA has closed its doors, and disputes cannot be referred in person until a future, still to be determined, date. This article will attempt to highlight some of the possible disputes that employers may face after the lockdown has been lifted and how each one should be handled.
• Claim for monies owing in terms of Section 73A of the Basic Conditions of Employment Act
Section 73A disputes are claims for outstanding money which, according to the employee, has not been paid. These disputes include, inter alia, claims for outstanding wages, payment for public holidays and leave pay. Employers must be reminded that should they receive a referral for this type of dispute, the employer will be required to check their calculations, payments made to the employee and the nature of the agreement reached with employees before the implementation of the lockdown which may have given rise to a short payment.
Throughout the duration of the lockdown, many employees have not received their ‘normal’ expected salary, this will, however, not automatically give rise to a 73A dispute. Importantly, employers are reminded to re-cap and continuously communicate payment agreements reached with employees in order to avoid unnecessary or frivolous 73A referrals.
Should a 73A dispute arise, the employer will be required to provide all proof of payments made, any payment agreements between the parties or any other evidence required to justify a short payment, if any.
• Unfair Labour Practice in terms of Section 186(2) of the Labour Relations Act
The implementation of the lockdown and dramatic decline in revenue earned by companies may have resulted in a reduction of salaries, training programs, pre-agreed promotions and/or certain entitlements being reduced. This would theoretically give rise to an unfair labour practice in terms of section 186(2) of the Labour Relations Act.
Employers are reminded that in these uncertain and unforeseeable times, any entitlements either by virtue of the employment contract, collective agreement, statute or other arrangements which an employee would normally have received will not necessarily fall away simply as a result of the lockdown or shortage of company funds. Therefore, employers must consult, communicate, and try and reach an agreement regarding the terms and conditions of employment and furthermore ensure that employees agree to the amendments to such benefit or entitlement in writing.
Should no such agreement have been reached before or during the lockdown, nothing prevents an employer from communicating and making arrangements regarding the training, promotion or benefit upon the employee returning to work in order to avoid a possible unfair labour practice referral. Such entitlements or benefits may be amended, pro-longed or cancelled in totality, as long as both parties agree to the arrangement.
• Dismissals in terms of Section 186(1) of the Labour Relations Act
The COVID-19 pandemic and subsequent lockdown were implemented on extremely short notice. It is quite reasonable to expect that many employers have been unable to communicate their situation with all their employees. As a result, many employees may feel that the employer has dismissed them, regardless of what was communicated to the employees. Whatever the circumstances, we anticipate that there with be a plethora of dismissal disputes referred to the CCMA post lockdown.
Therefore, it is advisable for all employers to do everything reasonably possible to actively communicate with their employees during and immediately after the lockdown, in order to confirm that they are still employed and are expected to report for duty on a certain date and time. Should an employee have been notified to return to work and fail to do so, an employer is required to immediately contact the employee to return to work and thereafter start a desertion diary.
In the event, that an employee fails to return to work once lockdown has been lifted and refers a dismissal dispute to the CCMA or relevant Bargaining Council, the employee will be unlikely to succeed in their dismissal claim, if the employer can produce communication indicating that the employee is still employed and was expected to report for duty on a set date.
At the end of the day, nothing prevents an employee from referring a variety of different dispute to the CCMA or relevant Bargaining Council, however, practice has shown us, that if employees are actively consulted with and communicated with regularly employees feel heard and understood, leading to less referrals. No matter what approach an employer has had to take, during the lockdown, a fair procedure and consultation process goes a long way to prove that an employer acted reasonably in the circumstances.