If the employer acts in good faith and practices procedural fairness within the provisions of Sections 189 and 189A of the LRA, the employee has no grounds for legal recourse against the employer, however, if the dismissal is deemed to be procedurally and / or substantively unfair, the employee will have full protection under the provisions of the LRA. Many businesses currently find themselves in a situation where they may not be able to fulfil their contractual obligations or pay salaries due to the lockdown put in place by the South African Government. ConclusionThe Regulations and Directives do not permit an employer to deviate from the provisions of the Act, nor is there any prohibition on dismissing an employee for operational requirements. This is becoming quite common these days as new technology is developed, and certainly something the world is going to have to address at some stage. Fair retrenchment process South Africa 2019 dictates that the employer has to issue a notice to the affected parties before engaging in talks with them. Start your free trial today.…, With Brief Analysis on Lexis+, you can build stronger arguments and legal documents by finding additional relevant…, Explore curated resources useful to those representing residential tenants affected by the. The manner in which the person works or his/her hours of work is/are subject to the direction or control of another person; The person forms part of the organisation; The person has worked for the other person for an average of at least 40 hours per month for the last three months; The person is economically dependent on the other person; The person is provided with tools of trade by the other person; and. If proper retrenchment procedures are followed, retrenchment packages may come in various forms, namely, but not limited to: Should an employee find themselves in a position where they have been unfairly retrenched, they have the right to refer their dispute to the Commission for Conciliation and Arbitration (“the CCMA”) or the applicable bargaining council within 30 days of the date of retrenchment. In addressing the nation, President Ramaphosa stated: “Our country finds itself confronted not only by a virus that has infected more than a quarter of a million people across the globe, but also by the prospects of a very deep economic recession that will cause businesses to close and many people to lose their jobs”. This article (and the information contained herein) should not be construed as being legal advice, and members of the public are advised to consult their legal practitioner where possible. The alternative, which is the most nuclear option, is to start the Retrenchment process. At such instances, both the employer and the worker need to have a good understanding of everything concerning retrenchment in South Africa and avoid unfairness. As you are aware, the whole world is confronted by the COVID – 19 pandemic, which has seen many countries across the world, including South Africa, implementing national lockdowns in a bid to contain the virus. The retrenchment procedure as laid down in the Labour Relations Act (LRA) must be followed properly and in good faith by the employer. [Durban, 22 April 2020] On 9 April 2019, President Cyril Ramaphosa announced a two-week extension of the nationwide lockdown. Who is an employee as defined in the Labour Relations Act? A dismissal must be for a fair reason and effected in accordance with a fair procedure. The employer is obliged to consult for a period of 60 days from the date on which the retrenchment notice is issued.” “The long-term impact of the lockdown remains difficult to predict,” Myburgh concludes. The time for performance of the independent contractor is specified. As you can imagine this is the leading reason for retrenchment during the Lockdown. As mentioned before, being retrenched isn’t just as simple as your employer giving you notice. Retrenchment is a form of dismissal due to no fault of the employee. Please share your thought with us and our readers […] See also: Immune-boosting recipes during Covid-19. Directions for employers to pay workers and not retrench them during the lockdown stand withdrawn since 17 May. The Act defines “Operational requirements” as requirements based on the economic, technological, structural or similar needs of the employer. An independent contractor works only subject to the contract. A fair retrenchment process and your legal rights in South Africa. Be the first to know when we update the LexisNexis COVID-19 Resource Centre, Lebogang is a candidate attorney at Gerhold and van Wyk Attorneys, based in Bryanston, Johannesburg. ***, Copyright 2020 Harris Billings Attorneys in Fourways, Notaries & Conveyancers |. During the national lockdown, section 189 of the Labour Relations Act 66 of 1995 will continue to govern the procedures that must be followed for a fair and lawful retrenchment. South African law, specifically section 189 of the Labour Relations Act, states that employers cannot retrench employees without following due process. The President recently announced a nation-wide lockdown in South Africa for 21 days from midnight on Thursday 26 March 2020 until midnight on Thursday 16 April 2020. “However, employers and their employees must work together to identify ways to mitigate some of the economic impacts on the business if companies are to continue operating once the lockdown is lifted.” As an independent contractor, it is vitally important to ensure that proper consideration is given to the terms of the contract, as certain clauses may allow for the  termination of the contractual relationship at the sole discretion of the employer with very little warning to the independent contractor (even if a breach of the agreement has not occurred). Andrea Hartzenburg is one of 2.2 million people who've lost their jobs during the second quarter of this year. By Crispin Adriaanse Apr 9, 2020. COVID-19: DOMESTIC WORKERS DURING THE LOCKDOWN IN SOUTH AFRICA. SA's biggest non-food retailer Edcon has served 22,000 of its employees with notices of retrenchments as it blames load-shedding and the initial 45-day hard lockdown for its collapse This is to keep themselves afloat in … The person only provides services to one person. Retrenchment is a form of dismissal due to no fault of the employee. LegalWise offers assistance and information on retrenchment. Section 200A of the LRA provides that, unless proven otherwise and irrespective of the wording or form of the contract concluded; a person is presumed to be an employee if any one of the following circumstances exists in the employer / employee relationship: Retrenchment occurs when the employer dismisses one or more of its employees for reasons based on the employer’s operational requirements. Like many other countries worldwide, South Africa went into a 21-day national lockdown on 27 March, in an effort to help slow down the spread of the Coronavirus (COVID-19). Written by Lebogang Kgope, Candidate attorney, Gerhold and van Wyk Attorneys and Conveyancers, for LexisNexis South Africa. Any dismissal, for operational requirements or otherwise, must be in accordance with the Act, even during the lockdown period. SHARE THIS ARTICLE; One of the hardest hit sectors of the economy during the national lockdown period, announced to run from midnight on 26 March 2020 to midnight on 16 April 2020, may be domestic workers. The firm is a general practice, offering clients assistance with all legal matters.Lebogang joined Gerhold and van Wyk Attorneys and Conveyancers in 2019, as a candidate attorney, after graduating from the University of the Western Cape, where she was on the Dean’s Merit List and a member of the Golden Key Society.Lebogang’s passions lie in criminal law, labour law and... Read more. Should you require any assistance in the retrenchment process as a result of the Coronavirus, we recommend that you contact one of our experienced attorneys who will be able to assist you through the process. The employer must also prove that he/she has shared with the targeted employees (or their representatives) all documentary and other information pertinent to the retrenchment. An independent contractor may perform through others. The contract does not necessarily terminate on death of the independent contractor. Nationwide LockdownOn 23 March 2020, President Cyril Ramaphosa announced a nationwide lockdown. By Talita Laubscher Wednesday, March 25, 2020. Read: How To Apply for Police Service Employment in South Africa. When Ramaphosa moved South Africa’s lockdown to Level 4, Tsopo had taught himself, with the help of YouTube, how to bake muffins and scones, which he sold to people in his neighbourhood. In the matter of SABC v McKenzie (1999) 20 ILJ 585 (LAC), the Court found that a person is an independent contractor in the following instances: It is of paramount importance to note that independent contractors are explicitly excluded from the definition of an employee under the Labour Relations Act 66 of 1995 (“the LRA”), and they are therefore not afforded any protection offered to employees by the LRA, specifically in instances of termination. For this reason, employers are faced with no other option but either to have the employees take unpaid leave, if the employees are able to afford it. The national lockdown and the recent credit agency downgrades have left many business owners with very few options as uncertainty prevails and the risk of mass retrenchments becomes a very real possibility. This is dealt with at section 189 of the LRA. Since the lockdown has commenced, many businesses have found themselves unable to meet their monthly obligations and are considering a reduction of staff. 4. SUBJECT: CCMA’S OPERATIONS DURING SOUTH AFRICA’S COVID – 19 LEVEL 4 LOCKDOWN. Although independent contractors are not afforded protected under the LRA, they do have legal recourse under the common law. Fine Redundancy Notice Template Ideas Resume Ideas namanasa 618800 Letter Termination Employment Sample Termination Service 585680 Our intention is that these retrenchment letter template south africa pictures gallery can be a guidance for you, bring you more references and also present you what you looking for. Section 210 of the Act directs that if any conflict arises between the Act and the provisions of any other law save the Constitution, the provisions of the Act will prevail. School-aged children (6 to 13y): 9 to 11 hours; Teenagers (14 to 17y): 8 to 10 hours; Younger adults (18 to 25y): 7-9 hours All rights reserved. any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and. The harsh reality is that many businesses will have to close their doors or implement vast reaching cost cutting policies as a result of the lockdown. Copyright © 2021 LexisNexis. Will existing laws protect workers now? The objective of the contract with an independent contractor is based upon the production of a specified result. *** Please note that this article (and the information contained herein) is to be used to inform members of the public. What many companies in South Africa are doing during the lockdown is to negotiate amendments to employees’ salaries. Many people in South Africa have faced challenges regarding their place of work - be it salary cuts, loss of income, retrenchments or liquidation.The Covid-19 lockdown in SA has brought a steep drop in income for most businesses, resulting in some.. Unfortunately the same cannot be said for independent contractors who are not afforded the same protection and relief. South African businesses are faced with a huge bill, estimated at R1.4-billion, for storage and demurrage costs accumulated during the 27 days of Alert Level 5 lockdown, as more than… Rest and sleep See to it that you get enough sleep. During the national lockdown, section 189 of the Labour Relations Act 66 of 1995 will continue to govern the procedures that must be followed for a fair and lawful retrenchment. Whilst measures have been implemented by the State to assist employers in retaining staff, if an employer contemplates dismissing one or more of its employees for reasons based on operational requirements, it must comply with Section 189 of the Act. The Retrenchment Process and Your Legal Rights. Written by Robin Gerhold, Partner, Gerhold and van Wyk Attorneys and Conveyancers, for LexisNexis South Africa. Employers are encouraged to seek alternative remedies to termination or retrenchment, which could include remote working arrangements, enforcing annual or special leave, demotion of employees, placing independent contractors or employees on shorter working hours or not to increase salaries. Coronavirus implications on retrenchment and other remedies employers should consider. The recent decision made during March 2020 by the South African Government declaring the Coronavirus pandemic (“Coronavirus”) a National Disaster has left many independent contractors and employees uncertain as to their income and employment security in the work place. If the employee is successful at the CCMA, the employee may be entitled to re-instatement, back pay, re-employment, compensation or any other remedy which the CCMA or applicable bargaining council may deem fit. RELX Group and the RE symbol are trade marks of RELX Intellectual Properties SA, used under license. As mentioned above, independent contractors are not afforded the same protection as employees by the LRA with the result that should the employer need to terminate an independent contractor’s contract, the employer will have to terminate the contract in accordance with the termination clause of the particular contract. Cookies help us to understand you better. According to Sleep Foundation, this is how much sleep the following age groups need to function properly during the day. https://www.hbattorneys.co.za/retrenchment-during-the-coronavirus-lockdown For instance, the fact that a South African employer's holding company in London or elsewhere has decided to restructure internationally to save costs is not of itself sufficient and the South African employer needs to make its own decision and contemplate dismissal for operational reasons prior to commencing the retrenchment process. Disaster Management Act: Regulations: Alert level 3 during Coronavirus COVID-19 lockdown Alert level 3 We are at an extremely dangerous point in our fight against the pandemic and therefor Cabinet has decided to put the country on an adjusted Level 3 from 29 December 2020 until 15 January 2021, whereafter it will be reviewed. We have been banned from buying our favourite foods, going out and enjoying South Africa?s beauty, ... Should we be having sex during lockdown? The information contained on this website is aimed at providing members of the public with guidance on the law in South Africa. https://www.lexisnexis.co.za/.../labour-law/retrenchments-during-lockdown The lockdown in essence is affecting the economy of South Africa tremendously. The coronavirus pandemic and the extended lockdown has had a clear impact on South African companies, with various government bodies reporting an increase in retrenchment and … The long lasting prevailing implications of the Coronavirus are at this point unknown. Retrenchments during lockdown - Any dismissal, for operational requirements or otherwise, must be in accordance with the Labour Relations Act 66 of 1995, even during the lockdown period. The South African Judiciary published a list of directives indicating what citizens would pay as fines, ... Legal Rights of Employees Returning to Work during Lockdown Level 3. According to new Consumer Pulse research from GfK South Africa into the behaviours and sentiment of online consumers during the last weeks of the Level 4 lockdown, “Unemployment and the economy have displaced COVID-19 as the top concerns for South African consumers as they personally experience the economic squeeze after weeks of lockdown.” Technological needs: Occurs where new technology makes a position in the company redundant. any other person who in any manner assists in carrying on or conducting the business of an employer. Learn more about the retrenchment process in SA here. Lockdown retrenchment a blessing in disguise, says CT entrepreneur. These consulting parties include those mentioned in the collective agreement as well as the registered trade union … The contract terminates on completion of or production of the specified result. However, during retrenchment, these benefits can all be lost due to the cutbacks. South Africa: Forced Leave, ... How does retrenchment work during this period? Even prior to the lockdown, it was foreseen that the economic impact would be severe and that many jobs would be lost. Harris Billings Incorporated will not be held liable for any damages suffered as a result of reliance on this article (or the information contained herein). An employee who finds themselves in a retrenchment situation would first have to ascertain whether the dismissal was both procedurally and substantively fair. ... You do not have to be a South African citizen to claim from the Road Accident Fund for bodily injuries sustained from a motor vehicle accident if the accident occurred within the boundaries of the Republic of South Africa. Retrenchment is a form of dismissal due to no fault of the employee. Retrenchments During the LockdownSection 185 of the Labour Relations Act 66 of 1995 (“The Act”) provides that no employee may be unfairly dismissed. Employers, from large corporations to small to medium entrepreneurs and businesses have had no alternative but to implement short time work, reduce salaries, place Employees on unpaid leave as a no work no pay circumstance during the lockdown, or regrettably have had to resort to retrenchment of their Employees as a direct result of the COVID-19 nationwide lockdown, the consequences of which has … As a temporary measure, the South African Government has made funds available from the Unemployment Insurance Fund (“the UIF”) for those employees who will not receive salaries, or rather receive a percentage of their salaries during the lockdown period; this is in order to circumvent lay-offs. Job cuts due to South Africa’s lockdown: here’s how employees are selected for retrenchment This index ranks the risk of catching Covid-19 based on your activity Next article ... employers who have compelled their employees to take annual leave during the lockdown period may claim the leave payment from the TERS benefit and then credit the employee concerned with the proportionate entitlement to the paid annual leave. One of the implications of the lockdown is that employers, independent contractors and employees have been left “between a rock and a hard place.” Economists have warned that the Coronavirus will have far reaching effects on the South African economy and South Africa will be hard hit with no economic growth and large scale job losses forecast. 20 Apr 2020. Browse on or click to. Attorney, Gerhold and van Wyk Attorneys and Conveyancers, Experience integrated research, guidance and news with Lexis+ General Counsel Suite. 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