In April 2021, Parliament extended the ongoing nation-wide state of public emergency (“SoE”) for a further period of 6 (six) months. In terms of the Emergency Powers (Covid-19) (Amendment) (No. 2) Regulations, 2020 [S.I. 63 of 2020] (the “Regulations”) certain acts are prohibited during the subsistence of the SoE.
One such action, in terms of regulation 30E of the regulations, is the termination of employment or retrenchment of employees by an employer who is unable to have employees work remotely from home or is unable to pay salaries.
The question remains is, what does this mean for employers; especially in light of the extension of the SoE to September 2021?
In terms of regulation 30E of the Regulations, when a business is unable to have its employees work remotely from home or to pay salaries, the business must cease operations. The intention of regulation 30E of the Regulations is to deter widespread retrenchment in the private sector, the consequence of which being such that a business must cease to operate in the event that it is unable to pay salaries.
Retrenchment is defined as the process whereby the service of an employee or employees is/are terminated by the employer due to the alleged financial/economic viability of the enterprise. The purpose should be to reduce labour costs in order to safeguard the survival of the organisation. The assumption is that if business improves, those retrenched could be offered re-employment in their previous positions.
What does it mean to cease operations? In the general context of Regulation 30E, ceasing operations takes on the meaning of closing shop. The Commissioner of Labour has taken the stance that retrenchment is wholly disallowed.
Employers do, however, have the option to place employees on unpaid leave or reduce staff on duty to only those members of staff critical to the business’ operations. Further, regulation 30E of the Regulations do not prevent employers from terminating employees for cause such as serious misconduct, misconduct, or on notice.
Whilst the SoE and the provisions of the regulations are restrictive on what an employer can and cannot do, there are principles of labour law that may be tailored to your unique needs.
For any further information, please feel free to contact Tefo Gaongalelwe at tefo@bookbinderlaw.co.bw or +267 391 2397 or Andile L. Mthupha at andile@bookbinderlaw.co.bw or +267 391 2397.