4. Who is an employee as defined in the Labour Relations Act? The information contained on this website is aimed at providing members of the public with guidance on the law in South Africa. The retrenchment procedure as laid down in the Labour Relations Act (LRA) must be followed properly and in good faith by the employer. 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”. 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. Learn more about the retrenchment process in SA here. Nationwide LockdownOn 23 March 2020, President Cyril Ramaphosa announced a nationwide lockdown. Unfortunately the same cannot be said for independent contractors who are not afforded the same protection and relief. 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. A fair retrenchment process and your legal rights in South Africa. 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. ***, Copyright 2020 Harris Billings Attorneys in Fourways, Notaries & Conveyancers |. 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. 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 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. The long lasting prevailing implications of the Coronavirus are at this point unknown. 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. All rights reserved. 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. The objective of the contract with an independent contractor is based upon the production of a specified result. 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. 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 Since the lockdown has commenced, many businesses have found themselves unable to meet their monthly obligations and are considering a reduction of staff. This is dealt with at section 189 of the LRA. Cookies help us to understand you better. Rest and sleep See to it that you get enough sleep. 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. 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. Copyright © 2021 LexisNexis. 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 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 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. Andrea Hartzenburg is one of 2.2 million people who've lost their jobs during the second quarter of this year. However, during retrenchment, these benefits can all be lost due to the cutbacks. 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. 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. This is to keep themselves afloat in … Even prior to the lockdown, it was foreseen that the economic impact would be severe and that many jobs would be lost. 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. 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. ... 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. A dismissal must be for a fair reason and effected in accordance with a fair procedure. 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. https://www.lexisnexis.co.za/.../labour-law/retrenchments-during-lockdown 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. Retrenchment is a form of dismissal due to no fault of the employee. any other person who in any manner assists in carrying on or conducting the business of an employer. The Act defines “Operational requirements” as requirements based on the economic, technological, structural or similar needs of the employer. As mentioned before, being retrenched isn’t just as simple as your employer giving you notice. What many companies in South Africa are doing during the lockdown is to negotiate amendments to employees’ salaries. 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). 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. ... 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. 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 RELX Group and the RE symbol are trade marks of RELX Intellectual Properties SA, used under license. Any dismissal, for operational requirements or otherwise, must be in accordance with the Act, even during the lockdown period. Please share your thought with us and our readers […] 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. Retrenchment is a form of dismissal due to no fault of the employee. Lockdown retrenchment a blessing in disguise, says CT entrepreneur. https://www.hbattorneys.co.za/retrenchment-during-the-coronavirus-lockdown 20 Apr 2020. Retrenchment is a form of dismissal due to no fault of the employee. The Retrenchment Process and Your Legal Rights. See also: Immune-boosting recipes during Covid-19. 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. Read: How To Apply for Police Service Employment in South Africa. LegalWise offers assistance and information on retrenchment. 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. We have been banned from buying our favourite foods, going out and enjoying South Africa?s beauty, ... Should we be having sex during lockdown? These consulting parties include those mentioned in the collective agreement as well as the registered trade union … 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. Although independent contractors are not afforded protected under the LRA, they do have legal recourse under the common law. The contract terminates on completion of or production of the specified result. 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. 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. The lockdown in essence is affecting the economy of South Africa tremendously. *** Please note that this article (and the information contained herein) is to be used to inform members of the public. 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. Coronavirus implications on retrenchment and other remedies employers should consider. 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). An independent contractor may perform through others. 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. 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... 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