By Ben Bierman, Managing Director at Business Partners Limited
Regardless of what industry you’re in, there’s no denying that the work environment is very different now to what it was two years ago. New health and safety policies have been introduced to workplaces, many employees now spend the majority of their week working from home and unfortunately, many people had to be let go from their jobs, or take a pay cut.
In addition to this, employers have also been faced with a number of other tough quandaries such as whether to implement a vaccination mandate, the disciplinary process around violations of their new COVID-19 safety protocols, and how to approach possible lay-offs and new hires in the future.
Of course, this is no simple feat for business owners who want to ensure they are compliant with the regulations and employment laws of the country. While one should always consult with a competent legal advisor to avoid potential legal issues down the line, it’s important to be aware of a few crucial basics when reviewing employee policies. With that in mind, here are two of the most important issues regarding employment law that business owners should be aware of within the current climate:
Many people disagree with COVID-19 vaccinations or cannot vaccinate for health or belief reasons. Enforcing a vaccine mandate is also a highly emotive matter for employers and employees alike and impacts many of the country’s legislation including the Labour Relations Act and the Constitution. Even if you believe that unvaccinated employees in the workplace present a risk to their colleagues’ health, you should approach the decision with a clear mind.
There is a growing number of businesses that have opted to make vaccinating mandatory, and government is also currently considering a vaccine mandate that will comply with the Constitution. This means that employer-imposed mandates are likely to hold up against legal action in the future.
Even so, it’s advisable for business owners to consider the pros and cons of implementing a vaccine mandate within their business, review all employee contracts to ensure that they are still relevant within the context of COVID-19 and await guidance from government on the process. Failing to take these steps and approach this important matter in this manner could lead to expensive litigation, at the CCMA or in the courts.
It’s highly likely that for many employers, the past two years have marked the first time that they have had to retrench employees in an effort to consolidate their operations simply to keep afloat. The unfortunate reality we are faced with is that many companies may still have to cut their workforce if they want to survive the coming months and years.
However, it’s important for SME owners to be aware that there is a specific process involved in retrenching staff, and getting it wrong exposes them to potentially crippling liability risks.
There are still many businesses that believe retrenching employees is as simple as issuing a notice of termination. However, letting employees go as a result of operational requirements is an entirely different procedure from dismissal on disciplinary grounds and should be done in accordance with the Labour Relations Act (the Act). It’s worth noting that retrenchment is not an opportunity to get rid of problem employees. The Act provides clear guidelines on how candidates for retrenchment should be selected.
Start by familiarising yourself with Section 189 of the Act, which focuses on finding ways of avoiding retrenchments and ensuring that the adverse effects of a dismissal are mitigated as far as possible. Following that, should you proceed to full-fledged retrenchment, you will have evidence that your business has done everything in its power to avoid the process.
With all the challenges that SMEs are currently faced with in the midst of this exceedingly harsh economic environment, the last thing a business owner needs is to spend their time and much needed funds tied up in costly litigation. Make sure that you have a crystal clear understanding of your responsibility towards your employees in order to avoid any labour law issues, and always have legal advice on hand when you draw up new employment contracts.