SMEs have had to deal with a litany of issues since the pandemic began. Many were forced to close shop for a period of time, had to put their staff on short time or retrench and even needed to restructure their entire business offering to make it relevant in these unusual times. Now, with most businesses back up and running, and SMEs needing the majority of their staff to return to work, it’s time to ensure they follow due process when it comes to remote work, contracts and the vaccine.
Wanting to work from home
During lockdown SMEs had to adhere to Government’s rules and send their entire staff contingent home, unless they were performing essential services. But with an uptick in the economy, many need their team back at the office to help return it to full operational tilt. The issue however is can SMEs demand this of their staff?
Many would have found remote work less expensive due to limited commuting, they spent more quality time with their family and could have been more productive. Some may even feel the workplace is not a safe place and could affect their health if they are forced to return. What then are the business owner’s rights here and who has the last say?
“When it comes to creating a safe environment, employers have a common law and statutory duty to create a space that abides by relevant health and safety protocols. This means if an employee doesn’t think it a safe space they could refuse the request to come back to work. If this happens, a business owner could consider if the employee’s refusal to return to work is affecting their operational requirements, which if this is true, could – as a last resort – end up in retrenchment of the employee,” says Erwin.
This could quickly end up at the CCMA if the employee disagrees with the business owner on the grounds for dismissal. What’s more, the case could extend to the Labour Court and even the Constitutional Court if the right to security in and control over one’s body (section 12 of the Constitution) is deemed to have been violated.
Given how grey an area this is, it is critical that SMEs review their employees’ contracts and run them by their legal team to assess if they are geared for this new world of work. It’s highly likely they did not plan for a pandemic. As such, contracts for all staff will need to be updated to include clauses around remote working, use of personal or company devices when working from home, insurance of said devices, etc.
The catch is that most contracts have a boiler plate clause that says no changes can be made to the contract unless it is made in writing and signed by both parties. Employers then would need to consult with their employees about any proposed amendments, as making a unilateral change to the terms and conditions of employment could be seen as a breach of contract. If employees don’t agree to the amendments, this could mean the employer has to resort to the retrenchment process, assuming there is a fair case to make that the changes are necessary in terms of its operational requirements.
The right to taking the vaccine
If employees are required to return to work, and it is clearly stated in their contracts, taking the vaccine is another area of contention. As it stands, no person can be forced to take the jab, yet if they go back to the office, and are not vaccinated, while everyone else is, they present a risk to their colleagues’ health. Further, if a number of employees refuse the vaccine and are therefore vulnerable to catching the virus, it could be passed on, meaning the business has to temporarily close, affecting it financially or competitively.
This is a highly contentious situation as business owners cannot enforce the vaccine. However, Government could limit the right to freedom and security of the person in section 12 of the Constitution in terms of section 36 of the Bill of Rights and make it mandatory to have the jab. In other words, protecting the general safety of the public could be seen as superseding an individual’s choice on whether to be vaccinated or not.
“The bottom line is this is a complex operating environment and SMEs are advised to get their house in order, as far as possible. In the very least, they must review their employees’ contracts and ensure they are relevant for Covid-19, and any future pandemics. They also need to ensure they have proper health and safety protocols in place. Should they omit to do so, they could find themselves having to deal with expensive litigation, at the CCMA or in the courts. At a time when every cent and second counts, this should be avoided,” concludes Erwin.