Companies using virus as excuse for dodgy dismissals

The Commission for Conciliation, Mediation and Arbitration (CCMA) has had its hands full in recent months and in August alone recorded almost 3,000 retrenchments. CCMA spokesperson Amos Tshabalala said on Tuesday the commission received a total of 1, 034 retrenchment referrals – and noted a total of 2,864 job losses – last month. This as the Covid-19 pandemic continued to bear down on businesses across the country, leaving their owners with no choice but to cut their staff. But according to a labour expert, some opportunistic employers have been using the pandemic as an excuse to get rid of 'dead wood'...
The Commission for Conciliation, Mediation and Arbitration (CCMA) has had its hands full in recent months and in August alone recorded almost 3,000 retrenchments.

CCMA spokesperson Amos Tshabalala said on Tuesday the commission received a total of 1, 034 retrenchment referrals – and noted a total of 2,864 job losses – last month.

This as the Covid-19 pandemic continued to bear down on businesses across the country, leaving their owners with no choice but to cut their staff. But according to a labour expert, some opportunistic employers have been using the pandemic as an excuse to get rid of 'dead wood' – and this is against the law.

Advocate Tertius Wessels, the legal director at Strata-G Labour Solutions, said retrenchments were "a major issue" right now.

"There has not been a week gone by recently where we have not seen at least one big business announcing some form of restructuring," he said.

And this looked set to continue, he said, with the long-term impact of the pandemic yet to be fully realised.

Wessels said the pandemic had brought with it "a slew of realisations for business owners".

"One such an epiphany is how most organisations need fewer employees to remain functional," he said. "But the law is clear on employers using Covid-19 as an excuse to retrench people."

Wessels said the same applied to employers firing staff who had been exposed to the virus or contracted it.

"In some cases, employers want to use that as a basis to terminate an employee's services but being exposed to or contracting Covid-19 isn't grounds for dismissal," he said.

He also warned that the law was "very clear" insofar as the due process to be followed in those cases.

Wessels said even in cases where retrenchments were as a legitimate result of the pandemic and an ensuing loss of income, due process had to be followed.

"Even at a capacity level when an employee is isolating at home and is not coming into work for 14 days, the employer does not have grounds to terminate that contract. They may have grounds if that employee refuses to return to work, citing Covid-19. In that case, it becomes about the capacity of that individual and what their employment contract stipulates," he said.

"This goes even for companies that have closed shop as a result of Covid-19. They must adhere to legislation with regards to dismissals."

Wessels said notifying staff a business was closing via text message, for example, left these individuals and their families completely in the lurch.

In terms of the law, he went on, employees who had been unfairly dismissed were entitled to be reinstated with back pay or 're-employed' as new employees. Alternatively they could be entitled to compensation in the form of up to 12 months of their salary.

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