What does “essential services” mean in terms of the Labour Relations Act, 66 of 1995?

In terms of S 65(1)(d)(i) read with S 213 of the Labour Relations Act, 66 of 1995 (“LRA”), employees who work in a designated essential service may not strike in order to ensure that the life, personal safety or health of the whole or part of the population is not endangered. In such cases the employer must determine a minimum service agreement allowing only a smaller number of employees to maintain minimum service.

Can all the functions in an institution be classified as an essential service?

Yes, S 71 of the LRA provides that the essential services committee may designate the whole or a part of a service is an essential service. However, there are instances where only a part of the business or functions are considered to be essential. The Constitutional Court upheld an application of appeal in favour of the union where in the Labour Appeal Court the SAPS argued that all services of the SAPS, whether carried out by SAPS Act employees or PSA employees, are essential. It was also argued that PSA employees perform an essential service in the SAPS and should also be prohibited from striking. The court ruled that only members of the South African Police Service (SAPS) employed under the South African Police Service Act (SAPS Act) are engaged in essential services as contemplated in sections 65(1) and 71(10) of the Labour Relations Act (LRA). The LAC held that the SAPS’s employees employed under the Public Service Act (PSA) constituted non-member employees and rendered non-essential services. The importance of this determination was that public sector employees not engaged in an essential service were permitted to strike.

Is the banking sector also identified as an essential service as per the Labour Relations Act, 66 of 1995?

Regulations issued in terms of the Disaster Management Act, 57 of 2002 temporary declared: “Financial services necessary to maintain the functioning of the banking and payments environment, including the JSE and similar exchanges, as well as Insurance services” as essential service. This declaration is temporary as from 26 March 2020 – 16 April 2020 or a date determined by Cabinet). Financial services are exempted from locking down but only for the purpose of the definition, i.e., to ensure that the life, personal safety or health of the whole or part of the population is not endangered. Under normal circumstances the finance sector is not an essential service and the employees may embark on a strike after all the procedures have been followed.

If I need to commute for the purpose to render an essential service, can the employer take disciplinary action against me for failing to report for duty due to no transport being available?

No, because according to Regulation 398 of G.G. No. 43148 the employer must in terms of S 11C make the necessary transport arrangements. There is however a duty on you to inform your employer timeously if you experience transport problems.

My employer said I must work from home, what happens if I am injured at home?

The COIDA states when an accident or an illness can be linked to the working conditions, employees have the right to claim compensation from the Compensation Fund. In order to claim for an injury, you must be able to prove that you have been injured whilst you were employed. Note that the test to prove the nexis or link between your duties as an employee and the injury is very stringent.

When will the COID commissioner pay?

The employer will not pay for your IOD if you are off less than 3 days but the employers must pay 75% of the wages or salary of the injured employee for the first three months after the injury on duty. The amount is refundable by the Compensation Commissioner. Once the 3 months period expires, the injured employee must claim his/her money from the Compensation Fund.

I work from home; can my employer hold a disciplinary hearing during this lockdown?

The current date for the lockdown has been set 26 March at 24:00 to 16 April 2020 at 24:00 or a date determined by Cabinet. The employer may not hold a formal disciplinary hearing during this period as there may be logistical problem to get all the parties together; however, nothing prevents the employer so start setting the wheels in motion by completing all the required administration paperwork. The employer must be fair and allow the employee, after the lockdown, sufficient time to at least prepare his/her case.

I want to lodge a grievance can I do it during the lockdown period?

Yes, you may. However, one must take into consideration the fact that grievance steps are time bound and whether it is practical to contact all parties involved in this grievance in order to allow the investigator/chairperson to make an informed decision.

Can the employer serve a S 189 letter on me to start with retrenchment proceedings during this lockdown?

Yes, however the employer might not be able to commence with the joint consensus seeking consultations during the lockdown period. Time period in terms of S189 and 189A starts running once you have received a S 189(3) letter. Accordingly, the employer may not be able to comply with the stipulated time procedures.

I applied for annual leave and it was approved. Can my employer convert my annual leave to special leave?

The Disaster Management Act, No. 57 of 2002 takes first preference at this moment and it is not intended to establish or create new rights, entitlements or obligations for employers and/or employees. The intention is that the objects of this Act may not be compromised in any way and that nobody may benefit at the cost of others. Therefore, the employer is not duty bound to convert or amend an employee’s terms and conditions of employment during this period unless the employer has engaged with the employee/Union in respect of such amendments. Once the lock down has been uplifted and everything has normalised, it will then be appropriate for the Union to engage with the employer in order to discuss, negotiate, consider and re-align any form of preferential treatment that resulted in the possible misallocation of benefits due to the lock down. In fact, this will place the Union in a better position to quantify and qualify any shortcomings or unfair treatment that employees may have suffered as result of this lock down.
Can I still refer my unfair dismissal to the CCMA during the lock down?

Yes, although the services of the CCMA have been suspended, it did not impact on the period or time to refer a dispute to the CCMA. Remember it is 30 days from the date of dismissal or termination of services and 90 days from the date when you became aware of the unfair labour practice.

My position has been identified as an essential banking service but If I refuse to go to work can the employer act against me?

Yes, the employer may. If your position has justifiably been declared as an essential banking service as per the Government Gazette, if you are not pregnant, have a weakened immune system or medical conditions like chronic bronchitis, emphysema, high blood pressure, heart disease, lung disease, cancer, or diabetes or you have been in contact with other individuals who may have or could have the virus, then you have to report for duty.

Can I refuse to undergo a medical test?

No, the Disaster Management Act, No. 57 of 2002 and all applicable Government Gazettes and Regulations applicable now trump any other legislation which means that individuals’ constitutional rights can be limited or impinged upon especially if it adversely affects the objectives of the Act.

What about FAIS exams?

All Regulatory Examinations with a deadline for 2020 will be extended to a deadline of 15 December 2020. All exams scheduled between 26 March 2020 and 16 April 2020 have been suspended. For postponements of examinations candidates may postpone their examinations. Postponements will not attract any penalties or additional fees.

What about FAIS qualifications?

All qualification deadlines that were due for completion during 2020 will be extended to a deadline date of 15 December 2020. This date will be subject to review.

What about product specific training?

As there are no deadlines linked to product specific training, no extensions are necessary. However, representatives may not render financial services if they have not received training on the products they render financial services against.

What about the 2019/2020 CPD (Continuous Professional Development) cycle?

Due to the cancellation of many CPD activities in March and April, FSPs, key individuals and representatives are granted an additional 3 months (until 31 August 2020) to meet the CPD requirements for this cycle.

What about the 2020/2021 CPD cycle?

The CPD requirement for this cycle will start on 1 September 2020 and ends on 31 May 20221. The CPD hours for this cycle will be calculated on a pro rat basis, i.e., calculated for 9 months instead of 12 months and will be prorate within 3 months.