Gideon du Plessis, trade union Solidarity’s General Secretary, notes that according to Trade and Industry Minister Ebrahim Patel, around 8 million employees can return to work under Level 3. That is good news, but it also means that more employees will now have to face retrenchment processes.
The National Treasury’s conservative prediction that there may be 1,79 million job losses due to Covid-19 means that many employees will be completely unable to keep their jobs, especially in cases where a business is closing or downsizing for the sake of its survival.
However, there will be thousands of employees who will be able to keep their jobs by adopting the right approach.
Advice to employees
It is important for any employee facing retrenchment to become familiar with section 189 of the Labour Relations Act, which sets out the retrenchment process. Cognisance must be taken of the obligations employers have and of the rights employees have. It would also be expedient to have a labour law expert or a trade union on your side.
A good start to a so-called 189 process is to thoroughly analyse the initial consultation notice and clarify uncertainties and irregularities in the first instance and to then present alternatives to the employer. Questions, counter-arguments and suggestions should be submitted to the employer, preferably in writing, because then the employer must by law reply in writing.
Affected employees and their representatives must be truly open-minded to consider any realistic alternatives to retain a job, even if it does mean reduced remuneration or a transfer. Now is the time to hang on to your job because opportunities to find another job will become increasingly remote.
What is also important in a 189 consultation is not to manoeuvre yourself out of a retrenchment package by coming up with unrealistic demands and delaying tactics. When it comes to the latter, trade unions have in the past already made the mistake of frustrating the retrenchment process with the aim of delaying the retrenchment date, but in the meantime the companies landed up in business rescue or liquidation while the consultation process was still in progress. An employer’s sustainability must therefore always be kept in mind during a retrenchment process as there is the risk of being out on the street without a retrenchment package when a company is pushed over the edge. In certain instances, it may therefore be expedient to accept a retrenchment package at the earliest opportunity before the company goes belly-up. In more favourable circumstances a voluntary severance package should only be considered if you have another job or you are financially secure. Each decision must be well-considered and based on reliable and accurate information.
Also be wary of unethical employers. An employer can be dishonest, pleading poverty at a time when Covid-19-related retrenchments are the norm only to continue with business as usual after a convenient retrenchment process took place. Another trick employers use is to cheaply retrench all workers and to close the business, only the re-open the very same business at other premises under a different name and with employees on lower salaries without posing any historical burden to the employer
When retrenchment does strike and there is no alternative, it is essential to negotiate the best possible package that does not only include a cash payment. For example, a clause can be negotiated about a return to the workplace should a similar job become available again. Bridges should therefore not be burnt. An advantage that could sometimes be of greater value than a financial package is to negotiate for training opportunities, especially for training in transferable skills. With the Fourth Industrial Revolution in mind the acquisition of appropriate critical skills after a retrenchment will not only make you marketable, but it will also serve as a safety net in any future retrenchment process.
Also ensure that the total retrenchment package is paid prior to, or at least on the last working day, and that the employer fulfil all its obligations to enable you to claim from the UIF. The employer should also ensure the fast-tracking of pension or provident fund withdrawal payments.
It is also advisable to involve a financial expert when deciding what to do with the severance pay and in exercising retirement fund options.
In addition to the threat of retrenchment, employers are now more focused on their employees’ compliance with Covid-19 regulations and general occupational health and safety legislation.
Compliance with this legislation is important from a health point of view, but also for the sake of job protection because employees will increasingly be exposed to disciplinary processes due to non-compliance and this could result in dismissal. Employees have control over this Covid-19 threat of dismissal and should therefore always act in a responsible way.
Under level 3 employees will have their backs to the wall, and the trauma and impact that accompany retrenchment is huge. However difficult it may be, a positive attitude after retrenchment is sometimes the difference between finding your feet again and finding yourself in a downward spiral. Where the possibility does exist, it is important to be creative and to make sacrifices to keep your job or to leave with a more favourable package. Employers, on the other hand, have an obligation towards their employees and their dependents, and our country, to see to it that retrenchment is really the last resort.