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In the case of Macsteel Service Centres SA (Pty) Ltd v National Union of Metal Workers of South Africa and Others (J483/20) [2020] ZALCJHB 129 (3 June 2020) the court decided that any variation to an employee’s salary, irrespective of whether it is increased or decreased, amounts to a change in terms and conditions of employment and cannot be effected unilaterally. It dealt specifically with a reduction of salaries of employees who were working full time during Covid and whose employers reduced their salaries due to loss of business. This makes it clear that the courts will not tolerate such unilateral reductions.
Ingrid Lewin
Section 61 of the Disaster Management Act (under which the various relief schemes have been establiushed) provides an indemnity. I quote it below:
Section 61 of the Disaster Management Act (under which the various relief schemes have been establiushed) provides an indemnity. I quote it below:
61. The Minister, the National Centre, a provincial or municipal disaster management centre, an employee seconded or designated for the purpose of the National Centre or a provincial or municipal disaster management centre, a representative of the National Centre or a provincial or municipal disaster management centre, or any other person exercising a power or performing a duty in terms of this Act, is not liable for anything done in good faith in terms of, or in furthering the objects of, this Act.
So, if one wishes to sue one would have to prove that the failure to provide the relief in terms of the Act was due to bad faith rather than incompetence.
Ingrid Lewin
What I recommend to employers as a guideline is to bear in mind how much time they took to investigate and prepare for the hearing and then to allow the employee an equivalent amount of time. However, I strongly agree with Michael, that, ideally, it should be by agreement. This has a several advantages. Not only will it add weight to a chairperson’s decision to proceed if the employee and / or his / her representative fails to attend, but it will also enhance the employee’s perception that the hearing was fair. The more the employee is part of the decision regarding the logistics (the date, time, place and, wherever possible, the identity of the chairperson), the less likely a claim of procedural unfairness will succeed. If this is written into a disciplinary code, however, the final say should be given to the employer as an employee may refuse to agree in order to delay the inevitable. Including shop stewards in this decision will also help to improve industrial relations.
