Whilst the nationwide lockdown has had a significant impact on various freedoms and rights, the imposed distance between managers and subordinates has not necessarily resulted in a cessation of typical workplace issues. In fact, in some instances the absence of close contact has resulted in employers being able to identify underperforming employees more clearly as the stark figures speak louder than the absent employee.
In understanding respective employment rights and obligations during lockdown, it is important to bear in mind that the fundamentals of the relationship between employer and employee have not changed. The employee remains bound by the employer’s prescripts, with a duty to serve the employer faithfully with the degree of competence expected from a person in that role. Employees may still not cause their employer harm through their conduct – a valid principle to remember during this time of increased online activity and social media commentary.
Furthermore, as employers grapple with the financial impact of the lockdown and the exceptionally bleak global economic outlook, many will adopt a less tolerant attitude to sub-optimal employee performance. Whilst some jurisdictions have seen the introduction of a ban on redundancies during the COVID-19 lockdown, South African employers remain entitled to terminate employment contracts, including for redundancy, conduct or capacity.
The Labour Relations Act (LRA) mandates a fair procedure prior to terminating employment. In respect of alleged misconduct, the employer is required to (1) investigate the allegations against the employee to determine whether there are grounds for dismissal, (2) inform the employee of the allegations against him in a language and form he understands, and (3) afford the employee an opportunity to respond to such allegations with the help of a fellow employee. This process does not need to be formal, and lends itself to being conducted via conference calls and email.
Many employers have adopted internal policies clarifying the procedure to be followed when dealing with employee misconduct. This policy supplements the general procedural requirements discussed above. However, employers are able to adapt their internal policies to the circumstance, provided they follow a fair process when disciplining employees. Employers may continue with the enquiry (in line with the policy as far as possible) using available technology. Employers have successfully concluded hearings using web-conferencing facilities (Skype, Teams, Zoom, BlueJeans, WhatsApp video chat, and so forth).
This is very beneficial to multinational companies that prefer to run such a process centrally or from a region housing the appropriate internal expertise. Provided the employer adheres to the basic requirements of procedural fairness, linked with those policy elements it can reasonably follow during the lockdown, the employer should be able to sustain a challenge on the procedural fairness of a termination during lockdown.
Following the enquiry, the company should inform the employee of its decision in writing. If the enquiry results in a dismissal, the employer must give the employee reasons for the dismissal and remind the employee of his right to refer the dispute to the employment tribunal.
Although it is easy enough to continue with dismissal procedures during the lockdown, employers must consider each employee’s personal circumstances. Where an employee does not have access to emails, a telephone or a strong internet connection, it will be difficult for the employee to respond to the allegations, let alone receive the help of a fellow employee. The employer should ensure that the process followed will be fair given the employee’s circumstances.
Managing a virtual workforce is a critical skill for the modern employer. It may be fraught with awkward conference calls and Zoom meetings, but managers should become more adept at managing employee performance and conduct remotely. The lockdown period should not preclude an employer from managing its employees as it would ordinarily do, and employees may not hide behind their curtains to avoid their obligations. The survival of a business often depends on the ability of its managers to ensure the business operates effectively, where it is in the fortunate position of being able to do so.
Johan Botes is a Partner, Julia Olley is an Associate Designate, and Kirsty Gibson is a Candidate Attorney, Employment and Compensation Practice Group at Baker McKenzie Johannesburg.