If you have enjoyed many years of business success and are looking for a new venture that allows you to give back to the business community and help others to realise their potential, you might be considering starting a new business as a business coach or mentor. Coaching and mentoring is becoming increasingly more popular, as more and more people take the plunge into starting their own businesses and are looking for somebody with a proven track record of success to help them steer their company in the right direction.
Whether staff are now remotely working for the foreseeable future or are slowly being reintroduced back into the workplace, one thing most businesses have in common during the pandemic is the swift adaptation of management.
Workers’ compensation insurance covers the lost wages, medical and rehabilitation costs of employees who sustain work-related injuries or suffer from occupational diseases. When employees sustain such injuries or are diagnosed with occupational diseases, employees can hold the company liable. Therefore, to avoid litigation and protect employees, companies purchase workers’ compensation insurance.
Accustomed to ergonomic work stations in the office, employees at clients of Alexander Forbes Health Management Solutions are seeing increased musculoskeletal strain as they adapt to home office environments during the Covid-19 lockdown.
The Johannesburg High Court recently found in the matter of Mhlonipheni v Mezepoli Melrose Arch and Others 2020 that employees (in this case, employed by the Mezepoli and Plaka chain of restaurants) were able to tender their services during Level 5 and Level 4 of the National Lockdown, and accordingly that their salaries were owing by their employers during that period. This resulted in their unpaid salaries being regarded as debts owed by the employers, and the employers’ self-professed inability to pay these amounts leading them to be placed into business rescue.
This judgement has been criticised, not least by the writer, for its arguably incorrect approach that non-essential employees were legally entitled to tender their services during the Level 5 and Level 4 stages of the lockdown. A review of this judgment was suggested in order to correct this legal misinterpretation.
Fortunately, the Labour Court has recently pronounced on the issue in the recent case of Macsteel Service Centres SA Proprietary Limited v NUMSA and Others. Although the case dealt with an urgent application brought by Macsteel to try and prevent a strike by NUMSA (which application was ultimately unsuccessful for unrelated reasons), the judge correctly dealt with the issue of whether employees could tender their services, and therefore be entitled to payment of salary, during these restricted periods of economic activity during Level 5 and Level 4 stages of the lockdown.
In doing so, the judge found that whereas Macsteel had generously undertaken to pay 100% of salaries in March and April, and then up to 80% of employees’ salaries for May, June and July 2020, with the Unemployment Insurance Fund Temporary Employee Relief Scheme being relied upon to make payment of the balance, it in fact had no legal obligation to do so in respect of employees who were not legally able to work. The court held correctly, that those employees who “rendered no service, albeit to no fault of their own or due to circumstances outside their employer’s control, like the global COVID-19 pandemic or the national state of disaster, are not entitled to remuneration and Macsteel could have implemented the principle of “no work no pay.”
The judge properly applied a detailed analysis of the employer’s situation, in also finding that where employees rendered their full services (bear in mind that for a portion of the lockdown, employers such as Macsteel were able to perform essential services, or to operate at 50% of manufacturing capacity, and as such, some employees would have been legally entitled to render services full time) these employees were in fact entitled to 100% of their salaries. The reduction to 80% was, in these cases, problematic and was a unilateral change to terms and conditions of employment.
This labour court judgment is to be welcomed, in that it confirms that the correct legal approach is that where it was legally impermissible for employees to perform services, the tendering of services by these employees is irrelevant, and the employer is entitled to implement a no work no pay principle, on the basis of the legal impossibility of both parties performing. Additionally, a case by case analysis must be adopted, and even (if necessary) assessing employees on an individual basis to assess their specific rights. This Macsteel judgement from the specialist labour court, rather than that of the High Court in Mezepoli, should be relied upon as setting out the correct approach.
By Bradley Workman- Davies, Director at Werksmans Attorneys.
COVID-19 has changed life as we know it, and it has taken a toll on the mental health of employees. According to a Workhuman® employee pulse survey, since the pandemic began, 42 percent of workers said they have felt a sense of loneliness and isolation once a week or more often, and 10 percent said they felt lonely every day. As we live through these unprecedented times, the power of human connection is more important than ever.
With most companies in South Africa now permitted to operate under the alert level 3 of the lockdown, many of us are feeling less anxious, with a sense that life is returning to a new type of normal. Most parts of the world are in a similar position, with a lot of us returning to work and, in some cases, once again being able to socialise (although at a distance) with family and friends.
Ever since its onset last December, the coronavirus has soon gained momentum to affect all walks of life within months, taking a heavy toll on all industries and sectors worldwide. Does your company happen to be in the high-risk sector? Is your business struggling amid huge talent loss and office bills that still need to be paid? Regardless of sector or size, the covid-19 influence must have been felt everywhere around you.
Whether you want a high-flying career in business working for a large company or want to start your own business one day and become an entrepreneur, getting a business degree from a university is often the logical first step to take. But, with so many different universities around the UK, all offering a wide variety of different courses, you certainly have your work cut out for you when it comes to deciding which one is going to be the best fit for your studies. We’ve put together some top tips on choosing a university to study business at, to help you make the right decision.
Whether an employer may utilise Zoom when conducting consultations in a retrenchment exercise. If not, does the continuation of the consultations in such circumstances result in procedural unfairness?
The Labour Relations Act 66 of 1995 (LRA) does not regulate how section 189 consultations are to be held (i.e. in person or via video conference). Normally, consultations take place physically, though this is not a necessary requirement. Due to Covid-19 a “new normal” has been created. Just because consultations cannot happen physically does not mean consultations cannot take place at all. Rather, given the Covid-19 pandemic Zoom is an appropriate medium for such consultations. This also ensures that adequate health and safety measures are adhered to.
In the case of Food and Allied Workers Union (FAWU) v South African Breweries (Pty) Ltd (SAB) (J435/20)  ZALCJHB 92 (28 May 2020), the Labour Court had to deal with, among others, the above issue. The facts of the matter are briefly set out below.
South African Breweries (employer) decided to restructure its business operations. As a result, a section 189(3) notice was issued, as required by the LRA. A facilitator was also appointed (due to it being a so-called ‘large scale retrenchment’). The running of the facilitation process was subsequently affected by the Covid-19 pandemic and the implementation of the national lockdown. As a result, the Commission for Conciliation, Mediation and Arbitration (CCMA) sought alternatives as to how to run the facilitation process (and consultations), one of which being the use of Zoom. FAWU objected to the use of alternative methods for the purposes of continuing the facilitation process. This resulted in the facilitator recusing himself. A new facilitator was appointed thereafter to assist in the process.
Prior to the implementation of national lockdown and the restrictive measures arising as a result thereof a timeline for consultations had been agreed to.
One of the facilitation meetings was scheduled to take place on or about 25 March 2020. It was proposed that meeting take place via Zoom or that the facilitated process be halted until the lockdown restrictions are lifted. No agreement could be reached on what alternative to pursue. FAWU elected not to participate in the process until the restrictions had been lifted (i.e. the end of the lockdown period). After the required 60 day period had lapsed, the employer issued notices of termination to the employees. As a result FAWU launched an application in the Labour Court in terms of section 189A (13) of the LRA.
FAWU sought, amongst others, an order declaring the consultation process procedurally unfair. FAWU asked the Court to interdict SAB from continuing with the consultation process without further facilitation from the CCMA and the physical presence of FAWU’s members at such process. They also sought to interdict SAB from implementing the notices of termination and from issuing new notices of termination of employment as well as the reinstatement of those employees already dismissed.
Aside from the issue as to whether Zoom was the appropriate medium through which to conduct the consultations, FAWU also had other objections regarding the consultation process. The first being that the number of employees consulted in the retrenchment process had increased from that reflected in the initial section 189(3) notices (from 500 to 1200). The second objection regarded the implementation of an organogram regarding the restructure without agreement being reached on same. The third objection was that the consultation process had not been completed at the time the notices to terminate were issued. These latter issues are not considered for purposes of this update.
Labour Court’s evaluation
The Labour Court held that when one considers the issue of procedural farness one must have regard to the LRA and the Code of Good Practice: Dismissal. Any process which complies with the obligations set out therein will be procedurally fair. The Code provides that a consultation “would be regarded as proper, if an opportunity to meet and report back to employees is provided, the opportunity to meet with the employer is provided and the request, receipt of information and consideration thereof is provided.” Section 189(3) furthermore requires that in any consultation process the parties engage in meaningful joint consensus-seeking process.
The Labour Court noted that consultations do normally take the form of physical meetings. This is not a necessary requirement, however. It does not follow that where consultations cannot be held in person they cannot be held at all. In fact, the use of video conferencing to conduct consultations predates the Covid-19 pandemic. The Labour Court found that the use of the Zoom application is a necessary tool to ensure that restrictions such as social distancing as a measure to avoid the spread of the virus is observed. There is nothing procedurally unfair if a consulting party suggests the usage of the Zoom application or some other form of videoconferencing. FAWU tried to demonstrate the problems inherent in using the Zoom application by pointing out an incident where screen and connectivity issues arose. The Labour Court accepted that wherever there is technology used, problems are expected to emerge However, this does not necessarily give rise to procedural unfairness. FAWU’s application was dismissed by the Court.
Importance of the case
There is flexibility in how section 189 consultations may be held. Due to the circumstances created by Covid-19, section 189 consultations may be conducted via videoconferencing. This is important to ensure that social distancing is maintained and health and safety standards are upheld.