According to the regulations pertaining to Alert Level 4, a number of additional businesses could have started their operations as of 1 May.
However, due to the remaining lockdown regulations, as well as the economic downturn, it may simply not be viable for some of these businesses to open.
The question arises as to how to deal with employees under these circumstances?
We are still of the opinion that a supervening impossibility of performance could be argued in respect of companies that are restricted by the Regulations to only operate at a certain percentage of their full capacity.
The obvious problem is that employees unaffected by the Regulations are entitled, by law, to tender their services and claim all their rights and benefits in terms of the contract of employment. It will therefore not be legally permissible for the employer to simply send the employees home on a no-work-no-pay basis as the lockdown Regulations no longer offer this protection.
There are a number of legal avenues an employer could follow depending on the conditions of employment applicable to the sector and the particular workplace. These include short time, lay-offs, retrenchments and the like. The employer will have to decide which measures will be most appropriate for its particular workplace.
These types of interventions do, however, normally come at a cost to both the employer and the employee should they simply be implemented by the employer, and should be avoided if possible and practical.
Employers are therefore advised to familiarize themselves with their contract of employment and bargaining council agreements before engaging with their employees in an open and transparent manner in order to determine if it is possible to reach some sort of mutually beneficial agreement. Should this not be possible, some harsh decisions will become unavoidable.
Employers are advised to contact their NEASA regional office for assistance in this regard.
NEASA 24/7 NATIONAL HOTLINE: 086 016 3272