For your perusal the following refers:
In the first part of the lockdown Employers were talking about how to pay salaries and wages and look after their Temporary and or Contact Employees (Assignees) and Permanent Employees. 6 (Six) weeks later and a looming Level 4 lockdown the focus is shifted to the survival of the business.
Some businesses are considering layoffs, short time, and retrenchments.
LAYOFF
Employees do not work at all for a period of time and are also not paid. They remain employees of the company but do not work and do not get paid (UIF can be claimed).
SHORT TIME
Reducing the number of days or hours per week, with a corresponding reduction on pay. For instance: working a 3 (Three) day week is a 40 (Forty) % reduction in pay. (UIF can be claimed).
Both lay-off and short time can be considered as measures to avoid retrenchment, before the decision to consider retrenchments is made.
THE PROCESS
Work out exactly what is needed for the company to run optimally within the limitations of Level 4, and then categorise the functions and employees as:
- Employees who are critical to the business and who can work remotely.
- Employees who can work reduced hours and can work remotely.
- Employees whose services are needed, but for a lesser period of time.
- Employees whose services are not necessary at all.
There are different approaches you can take in each of the categories. The operational requirements may mean that each category can change, as the operational needs of the company changes. While there is flexibility in the management of post-Level 5 lockdown approaches, there is specific Procedure which must be followed.
| Employees who are critical to the business and who can work remotely. | For them it is business and pay, as usual. |
| Employees who can work reduced hours and can work remotely. | Short time, with proportionally less pay. |
| Employees whose services are needed, but for a lesser period of time. | Short time, with proportionally less pay. |
| Employees whose services are not necessary at all. | Temporary lay-off, with no pay. |
Out of these measures, retrenchment, and all its Procedures, could take place. It is possible to commence retrenchment consultation while short time and lay-off are active.
EQUAL TREATMENT FOR ALL EMPLOYEES
Within the context of this email the above does not necessarily apply. It all boils down to your operational requirements. You can have one department or function on complete lay-off, another on 1 (One) day a week, and another working full time. Equal treatment comes in when employees doing the same function are treated unequally, or there is no objective operational reason for an employee to be laid off or placed on short time. These different operational changes are best justified within the inherent, and objective, requirements of the job and company.
Spread the work as much as possible – if there are multiple employees with the same skills – allow them all an opportunity for some work, and thereby receive some pay.
THE PROCEDURE
Several Main Agreements provide for lay-off and short time, and those Procedures would need to be followed.
The Basic Conditions of Employment Act does not provide for lay-off or short time, and it falls into the category of a change to Terms and Conditions of employment.
Because the introduction of lay-off or short time is, in effect, an alteration to the Agreement of employment, there needs to be agreement to go onto lay-off or short time. There must, therefore, be consultation with employees, and ideally a written Agreement. Should Agreement not happen, the alternatives are retrenchment or a lock out, the latter being a very extreme approach.
Consultation will have to take place, and employees need to be told of the intention to go onto short-time or lay-off and given an opportunity to consult on the matter. Once consultation is exhausted, the employer can take the chance and implement.
We are finding very little opposition to the concepts of short time and lay-off, under the circumstances.
HOW TO CONSULT WITH NOBODY
Any means possible: email, fax, WhatsApp amongst others. You must be able to show that consultation took place and that responses to the consultation were considered and replied to. Unionised employees’ union representatives must be invited to consult too. The consultation is not just an inconvenient process – it is a genuine consideration of alternatives to the lay-off or short time, and the manner in which it will be carried out.
If the provision of lay-off or short-time is in the signed Agreement of employment, the process is simpler, but consultation still takes place.
TIME LIMIT
There is none – the lay-off and short time, and variations of both, have no maximum or minimum time limit – it is based on the justifiable operational requirements of the company.
HOW SHORT IS SHORT TIME?
It can reduce to as little as an hour a week – any less than that is lay-off. If short time is going to be that extreme, a closer look at the operational needs of the employer will have to be taken, and new approaches taken.
WHEN TO RETRENCH
Lay-off and short time is not necessarily a precursor to retrenchment. It obviously can be, but there is no point at which retrenchment is compulsory, or that employees can demand retrenchment.
Any changes, such as these, should not be taken lightly, and due process must be followed.
