Ira Epstein, Bronwyn Marques and Darryn Mer of Fluxmans Attorneys
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A lot of ground was covered in this webinar by Bronwyn Marques, director, labour and human resources department; Ira Epstein, joint chief executive and managing director; and Darryn Mer, director, labour and human resources department of Fluxmans Attorneys.
Health and Safety in the workplace
The health and safety protocols that our government set up for employers to protect their employees have to be observed: if you don’t comply, you will be heavily penalised. If you ignore the rules, it is not a criminal offence, but beware: the police may still arrest you.
Level 4 has opened up “permitted” services such as construction and banking, which have brought some relief for the economy. Employers must issue their employees with a permit enabling them to travel: NPOs may use affidavits. Workers must produce their permit along with their ID if the police demand it. People in essential and permitted services may be on the road outside of curfew hours.
Employers must crate a plan setting out how they are going to enter the system again as lockdown levels change. One person must be appointed as a compliance officer. The compliance officer must ensure that the preventative measures, health and safety protocols and the workplace plan is complied with. This should include ensuring that screening of employees is undertaken; temperatures must be taken; and hand sanitiser must be available. All work surfaces must be clean. The plan must cover all these hygiene requirements. Biometric security devices must be taken into account — you don’t want all your staff touching the same button, for instance.
The compliance officer’s role is to ensure that all the objectives of the plan are adhered to. The plan must comply with Annexure E of the regulations published in the Government Gazette.
Vulnerable employees require special measures; these are people over the age of 60 and those with pre-existing conditions. Special measures may include working from home if at all possible, or they should be isolated at work so that they cannot catch the virus.
Screening involves measuring temperatures with a thermometer that doesn’t touch people. Employers must be aware of symptoms such as coughing, red eyes, difficulty breathing etc. An employee with such symptoms must be put on sick leave. Employers cannot deduct the costs of safety measures from their employees’ salaries. They also have to provide employees with at least two face masks.
If a person is found to have Covid-19 they must be isolated and transported to where they can get tested. The places where they worked must be disinfected, and the infection must be reported to the departments of health and labour. Such an employee will only be allowed back to work when they have a certificate stating they are no longer positive. They may not be discriminated against for having contracted the virus.
Legal implications of salary cuts and retrenchments
Covid-19 is now defined as an occupationally acquired disease. This means you can claim for it; it’s the same as being injured at work. You will get paid for 30 days and your dependants will be paid out if you die from it.
Businesses are under pressure to reduce costs. Options include cutting salaries and exploring alternatives to retrenchments, such as shorter working hours for employers and lay-offs (when an employee doesn’t work for a certain period of time, then returns to work). Employers should avoid retrenchments if at all possible, as agreements must be made with employees and trade unions. Consultations with employees may legally take place if they are not at work, for example via email or Zoom.
If processes are not followed correctly, employers can be interdicted by trade unions, so there are significant dangers involved. Section 189 of Labour Act must be followed; there are no differences to the Act during the Covid-19 crisis period.
Employees must be in consensus on salary reductions, but generally will agree to them if the alternative is the business going into liquidation, or the refusal may result in the retrenchment of employees. You cannot pinpoint and punish employees who don’t agree. If an employee has had a reduction, then is retrenched, the severance package may be calculated on their salary before it was reduced (this will depend on the particular circumstances).
Temporary Employer-Employee Relief Scheme (Ters)
The Temporary Employer-Employee Relief Scheme (Ters) has been established to assist employees who have lost income or who were required to take annual leave as a result of the Covid-19 crisis. Only employers (not employees) can apply, and they must be contributing to the Unemployment Insurance Fund.
Interestingly, foreign nationals CAN apply for benefits, not just South African citizens.
Companies don’t have to be in financial distress to claim. Employers must pay funds received out to employers, unless they have been already paid, or have taken annual leave. The money cannot be used to keep the business going and does not fall within the general assets of the business.
The Ters benefit can be applied for to make up employees’ salaries or for reductions to their salaries. Those who work on commission (as their monthly commission fluctuates) must provide proof of six months of payments to receive Ters benefits.
For more information, visit: www.fluxmans.com