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Davies Ndumiso Sibanda
MANY employers are not sure of what to do with workers who are not at work during the lockdown and workers are not certain as to what is going to happen to their jobs and salaries during the lockdown.
The starting point is to be clear that the corona virus is an act of God beyond the control of the employer and the worker.
The employer wants the worker to come to work and the worker wants to work but there are two limiting factors and these are fear of the disease and Government action which has resulted in workers staying at home.
A common question has been, “What does the Labour Act say”? In my opinion, the Labour Act Chapter 28:01 is dwarfed by the occasion as it was not designed to handle worldwide disasters.
An attempt has been made by many to place the Labour Act Chapter 28:01 at the center of the situation we are in, however I don’t think it is likely to provide robust solutions.
Many countries have crafted special legislation to address labour and economic issues in order to avert massive unemployment and closure of business.
Our fragile economy may not have been implemented elsewhere, however the bottom-line is that we should have a plan to save jobs and businesses and at the same time possibly look after workers during the lockdown.
There are many businesses that have no capacity to pay workers while they are not at work as salaries have to come from work done monthly.
Such organisations have told workers to take vacation leave and those without vacation leave they take it in advance in order to help make the balance sheet attractive and reduce employer liability to workers. Most workers have agreed to the arrangement even if legally speaking a lockdown cannot be termed vacation leave.
The Ministry of Labour and Social Welfare has provided some direction on how employers and workers should relate during the lockdown.
The ministry has been very careful not to legislate as it has no legal powers to legislate over disasters.
The ministry has, however, strongly urged employers to negotiate with workers and find common ground.
While parties can negotiate and come up with some agreement there are cases where some employers may simply say they cannot pay for no work in line with common law.
That will leave workers with no legal recourse.
Many employers and workers have, however, engaged and agreed on various options such as full pay for April to be reviewed at the end of the month, using vacation leave days for the month at April to be reviewed at the end of the month.
Half pay monthly to be reviewed at the end of the month, working from home and workers sharing a percentage of what has been generated.
Paying basic salaries without allowances and many others.
In essential services where not all employees are required at a time, stringent health plans have been put in place and workers rotate so that everyone has a chance to work and earn a living.
The agreement is so variegated but most are a balance between keeping jobs and ensuring the future of the business.
There also challenges of those businesses that are likely to go under after the lockdown is lifted.
In such cases, liquidation procedures could be followed with limited chance that workers will get something.
After the lockdown, a number of businesses are unlikely to go to full production at once and some workers will have to be engaged later or will not be engaged at all.
These are the cases in my opinion who will have to be terminated through the Labour Act Chapter 28:01 processes as the emergency will have passed.
However, this can be challenged by employers who can argue that jobs lost to a supervening impossibility and as such employer retrenchment obligations are not applicable and it would be up to the court to decide.
I see works councils and NECs playing an important role in managing labour relations fallouts that are likely to occur as workers lose jobs, salaries and benefits are cut, unpaid leave is extended, retrenchments without any payment are done and businesses fold without notice and many others.
Where disputes get to court it would be interesting to see how the Labour Court handles cases where employers plead supervening impossibility.
In conclusion, despite the fact that the Labour Act Chapter 28:01 is dwarfed by the occasion, the best route for employers and workers in my opinion is engaging at works council and only if no solution is not found at works council can matters be escalated to NECs.
Litigation is likely to be costly in many ways for both parties.
Davies Ndumiso Sibanda can be contacted on:
email: [email protected]
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