MEMBERSHIP

Roughly by the middle of March, if an Employer and an Employee have been Registered before the Lockdown in other words with UIF, they would be able to get the TERS Benefit. And that will not be linked to how many Credits they might have at all or with a particular Employer they must just be Registered by that date on the System.

The base Regulations that TERS comes from is that the TERS has only been put into effect for a period of three (3) months. (This is the current stipulation). Currently it is stated that after three (3) months, if the Employer still can’t employ the Employee, as things stand at the moment they will Qualify for reduced work or maybe Unemployment or whatever the case may be I do think it’s fair to assume that the government, if we’re going to have this ‘phased’ situation to go on for much longer and sort of the majority or a big part of the society can’t go back to work that they will have a further, either an extension of TERS or some other kind of Benefit that they might put in place. The current base Regulations for TERS is for a maximum of three (3) months from say roughly the end of March.

We know that there would be other Bodies/Bargaining Councils or Unions that might not be following the same principle, but in general a solution could be found.

What we have actually instituted is a Policy in situations whereby if a person can’t work, they want to work but they can’t. In other words that their job is such that they have to be at the office, or they have to be on site to be able to work. In those situations, instead of going for “no work no pay” we have really tried to institute that employees wherever possible take annual Leave.

Now where this has become a problem is (a) is if a person doesn’t have the leave. What do we do then? Or secondly, some employees have obviously been dissatisfied with this approach because they would have preferred to have extended their Leave and had it in December to go away and to take it at a time that they could actually enjoy that Leave.

We’ve been very sympathetic to that need, however, the other part of it is that it has been really important that instead of receiving “no pay” rather take Leave and get paid. So what we’ve done in those instances, and this is where this is not specifically across all areas, but I’m speaking in general, what we have done is we’ve reached a “negotiated point” where we would say to Staff, look, take your leave now.

When we get to December let’s – what we’re calling “pay it forward” a bit. So in other words, take Leave now, if we get to December and we are in a situation that we can have a five (5) day you know shutdown over the December period and you need five (5) days and you don’t have five (5) days, we’ll actually allow you to go into negative Leave balance, i.e., we take your Leave from next year and we offset it off now and next year you will start your new Leave Cycle with a minus five (5) for example days leave, but ultimately we will work that through.

And what we’ve done is we’ve – so in other words then the following Leave Cycle, you start off with a deficit but at least you are offsetting one year against another. Now we’ve been criticised for this approach by some Parties saying, but you know you’re just taking from one year to the next. And yes we are and there’s no perfect scenario on the ground but what we are trying to do wherever we can is just be reasonable to say, instead of not getting paid, what do we do about finding whatever alternative we can so that we can actually have people earning what they need to earn on a month-to-month basis?

So Leave has been one area which has been quite contentious in terms of us using Annual Leave at this point, but I must say practically Harry on the ground it is one vehicle and one avenue that has been used quite extensively in my world where a number of people have actually taken Leave over this period.

Essential services, as defined by Government include medical, health (including mental health), laboratory and other medical services.
Indeed, it could be argued that optometry, as a primary care profession, falls into the category of ‘health’ or even ‘medical’. Once again, however, any definition considered needs to be viewed within the context of a national disaster and state of emergency.
The SAOA has always advocated for the services rendered by optometrists and dispensing opticians to be categorised as ‘essential’, considering the relevance of healthy vision in the lives of all.
The declaration of a national disaster, however, adds a completely different dimension. The risk of exposure to infection with potential dire consequence versus ‘business as usual’ ? From the SAOA point of view, there is no contest.

The SAOA will stay on top of developments, locally and internationally, to the best of our ability and will continue to advise and guide accordingly. Our close ties to organisations such as the World Council of Optometry (WCO) and others have been of great value.
It is to be noted, nevertheless, that we are also very aware of the principles of telehealth being embraced by a number of professions as well as the stance adopted by the HPCSA, having participated in a number of forums in this regard.
We are in the process of investigating the concept of tele-optometry for South Africa and will publish our position in due course.

Other than given guidance to our members to stay at home during this lock down period and only attend to urgent and emergent cases, the SAOA has:

1. Instituted a Member Hotline to advise and assist members on a personalised/individualised basis
2. Provided members with a compendium of guidelines which addresses labour related matters, financial relief options, landlord relations, amongst others
3. Provided templates and forms to assist members in a number of situations which may arise.
4. Approached financial institutions, insurance companies, suppliers and others with an appeal to provide latitude and leniency in response to applications from members who may find themselves in financial distress due COVID 19 and the lock down.
5. Approached medical schemes, networks and administrators requesting a review of current policies and benefits in respect of COVID 19.
6. Continued to engage at the highest levels to keep members updated.

If you want to terminate the employment of the Employee and replace a permanent contract with a temporary contract you would need the consent of the Employee. Consultations with the Employee is needed to explain the situation to the Employee for the Employee to consent to the change of the Employment contract. It is mostly likely that the Employee will not agree to this as the Employee will be giving up the security of a Permanent Employee to become a Temporary Employee with a temporary or a limited time-period of Contract.

Yes, SARS has been Appointed as a Collection Agent for the UIF and for the Skills Development Levy, so the systems interlink.

Just continue with the normal Consultation, engagement with the Unions, and keep Unions closer than normal. Communicate more with the Unions and we’ve Partnered more during this time and all within the realms of the normal Labour Law. Do not take any shortcuts and be more innovative in terms of how you engage and how you communicate.

Yes, according to the amended Regulations and Directives that’s been issued has basically made it clear that the Employer can do that.

You can do that or the net-effect of it will be that you have a UIF Benefit and the Employer can top-up or whatever the case is. I mean they’ve even said, I think it was the 16th of April that people that has been required to go on Leave or has gone on Annual Leave, the Employer can Claim for TERS and then can set it off and credit back that Leave to the Employers, that was the 16th of April.

If you’re not Registered as an Employer for UIF you must Register as soon as possible. There might be some form of penalty in terms of calculating backwards when the Employee started with you, but as you know we’re talking about 1% contribution by the Employer and 1% by the Employee. Even if you have to pay 2% of the Employee’s salary over a time period, it will not be a big amount of money. This does mean that the Employers has unfortunately missed the deadline to be able to claim for the TERS Benefit, because the Employee has not been registered at the time when the TERS Benefit requires you to have been Registered to qualify to claim.

Bankruptcy is regulated by the Insolvency Act. The Employment Relationship does not come to an end when the Employer file for Liquidation. The Employment Relationship continues and it’s in the hands of the Liquidator to decide whether he wants to Terminate the Employment Relationship or not. Your other Contracts (all your supplier contracts, your rental agreement, your lease agreement) stay in place and the Liquidator does not have the authority to cancel these contracts. These contracts will only come to an end once the final Liquidation has taken place or the Liquidator has given Notice in terms of the Notice requirements. So, it is a difficult issue because there is no duty on the Liquidator to actually retrench the employees. So many times my suggestion to Employers is that if you see that you will be having to file for liquidation or in the case of an individual for insolvency, then it might be worth your while to start a Process of Retrenchment beforehand so that there’s Accrued amount for severance pay by the time that you actually file for Liquidation or Insolvency, then the Employees would at least get their Severance Pay and that’s always preferred relative to terms for all Creditors.

You have to distinguish now, talking “Lockdown” when your Staff is prohibited from actually working, that is where we start out with the principle of “no work no pay.” So, if you then cannot pay them at all or you can only pay them a small amount, or you can only Apply for them for UIF Benefits that is what you can do.

The employer has to enter into your consultation process negotiate on alternatives. And you know it should be easier than maybe your normal Pre-Covid Retrenchments sort of scenarios in the sense that everyone knows that there’s an economic crunch and why that is. It’s not just a matter of an Employer saying “suddenly” I can’t afford it I want to pay you less. So in that sense there’s a solid source, expansive basis for saying, well, you know let’s work together we need to produce salaries otherwise we can’t stay afloat and the alternative is that I have to close business ; so let’s find a solution.

The Legal position is that the employer does not have to institute a policy in this time of Lockdown.

Employees are not allowed to work at this stage by way of government restriction. This means that the government is not allowing Employees to tender their services to the Employer. Due to this, simply stated, on the principle of “no work, no pay” the Employer is not Legally obliged to pay Employees who are not working at the moment for the employer.

Employees that can work from home needs to be remunerated for what the Employees do for the Employer.

Although the principle of no work, no pay can be applied, the government has urged employers to try to assist Employees financially as far as possible.

Option 1: If you are in the position to keep paying your Employee's salaries, please assist as far as possible.

Option 2 Due to the future being unknown and employers can't pay salaries to the employees, the Government has provided certain relief options. These benefits are UIF related Benefits to Employees, and Employers are encouraged to apply for these benefits on behalf of their Employees.

Yes, it’s possible to Retrench Staff if the practice can no longer afford to pay employees. An arrangement can be made to gainfully employ them for a period of time.

The Employer will need to consider if the business/practice will return to normal after this lockdown or not. The Employer needs to plan strategically with regards to the practice and where the practice wants to go in the future.

Thoughts to consider: Restructuring of the business taking into consideration the amount of Employees needed in the future. If you find Employee numbers need to be adjusted, the Employer will need to follow a process for retrenchment.

An Employer has a duty in terms of the Health and Safety Act to provide a safe working environment. The near future will most likely bring new Regulations on exactly how the employer have to safeguard the workplaces to make sure that there’s a minimum chance of infection of people.

If anybody that enters the practice was in contact with a person who tests positively for covid 19, the practice environment has to be disinfected, Employees, patients and the Employer have to be tested for Covid 19 and all involved have to go into isolation for a two (2) week period.

All employees need to go into isolation because of the possibility of contracting Covid19. If the Employee tests positive for Covid19, the Employee will claim from normal Sick Leave. Circumstances of how and where Covid19 was contracted will be investigated. If an Employee contracts Covid 19 outside of work, it is not the Employer’s duty to keep the workplace safe. It is the Employers duty to not allow that Employee into the practice. The Employee will claim for normal sick leave.

In terms of the Business Models and the Ethical Rules prescribed, you can be an Employee or an Associate (An Associate Trades under their own Registration Number) or a Partner (you trade under a Registration Number) Consider what the contractual arrangements are with the locum. Now in terms of Locums, we all know that there’s only a six (6) month period that a Locum is supposed to be working in your Practice. I can imagine that a Locum will only come in as the Associate for that time period or as an Employee, a fixed-term Employee. If the Locum comes in as a fixed-term Employee, then the Benefits for that Employee will still be the same as for any other Employee in terms of TERS Covid- 19 Benefit. If that Employee for instance should be working in Emergency Services and see a certain number of Patients one would have to pay the Employee a Prorata portion of the Salary for that period that the Employee works.

If the Locum Trades as an Associate under those circumstances with his/her own Employees or her own Practice Number, then obviously the normal arrangements that she placed between the Principal and the Locum will stand in terms of what percentage the Locum gets and what percentage the Principal gets in terms of the Benefits of the Services that the Principal gives to the Locum under the circumstances.

There are different scenarios to consider with regards to the probation period. First of all, you’re going to have a scenario where a person is working from home, okay, and in that instance because the person is working I’m going to apply the Probationary Period. And obviously it’s going to be a slightly different method of managing the person because they’re not visible at all times and one would have to put plans in place to make sure that there are Key Deliverables around the Probation Period that you want to check.

Secondly a situation where the person is not working, there’s no work taking place, it would be quite unfair on the Employee to institute the probation period from the point of the duration of the Contract because there’s no evidence that one would be able to look at in terms of what they’re delivering or checking their suitability to even the Organisation. So, my suggestion from an HR perspective I would probably institute some latitude with 2 options:

Option 1: I would give the person certain Tasks that I would deem suitable that they could do in their own time even if they are not working and test how they’re doing against those Tasks.

Option 2: I would actually delay the onset or the start of the Probationary Period until such a point that I can actually measure. Because remember the point of a Probation is to Assess whether that Employee is able to work according to what’s required in the Role that they Appointed to, whether they fit into the Organisation and whether they’re a suitable match. So, if you can’t test those things my view would be that you would have to apply some sort of flexibility in terms of how you manage the Probation Period.

From a Legal perspective you are going to have to be able to say that you have grounds in a case like this to actually agree to an extension of the Probationary Period. Because I mean obviously you cannot Assess. And that is why Probation is there for, it’s not just something that you put in a Contract as sort of a Standard Clause it has a meaning. So the meaning of Probation is to Assess if the person is a fit and is capable of doing their job and you can’t do that if you can’t practically Assess them. So I would say just make sure if you’re an Employer and you have that situation that you formally communicate with such an Employee and you enter into a specific Formal Document or Letter or something so that there’s a Paper Trail in terms of extending, and maybe link that from whenever you are able to return to work for a period of say three (3) months or whatever the case may be, so that you don’t have to just [indiscernible] [1:11:20.6] because we don’t know how long this phase-in period will last. So instead of just saying “three (3)” months and then three (3) months and then three (3) months, maybe/potentially, just say, when we are capable of starting to Assess you for a period of so long. And then have that in Writing because otherwise you might end up with people saying, but I have Probationary Period, it expired, the Employer didn’t communicate with me. So now I can say I’m Permanent. And you don’t want that to happen. So have a very clear Paper Trail and Process that you have followed in that regard.

In terms of the Ethical Rules the Council frowns upon incentivising employees on a per patient basis. The question is “how” does one interpret the idea of incentivising on the basis of per patient?

I think in my opinion at least the background behind that would be to try to push through as many as possible patients so that you can earn more. I’m not quite sure why people would want to remunerate on the basis of a Per Patient, because if it’s an Employee who remunerates on the basis not of Performance but in terms of time, so one would then do a proportioned payment in terms of time. If it is an Independent Contractor by an Associate then there clearly must be some Contractual Agreement behind that that indicates the basis of payment, and on what basis the payment is calculated. That might very well be in terms of every Patient seen, X percent goes to the Practice for Overheads and Supervision and the rest goes to the Locum.

When employees are in a position to actually come and tender their Services to the Employer, and if the Employer can’t afford to pay the Employees, the employer needs to adhere to the Labour laws. The Employer cannot unilaterally decide to pay an Employee less for the Services that the Employee tendered in terms of their Contract. If the Employee has a Contract, the basic Conditions of Employment have to be adhered to and it states that if Services are tendered the Employees are “entitled” to get paid in terms of those Terms and Conditions.

With regard to consultation, there is discussion where an employer has approached r staff saying, “look, we can’t afford to pay full salaries so what we’re going to do is we’re going to suggest that everybody take for example a 20% cut “. And in most cases – and this is particularly in small Businesses that I’m explaining or expressing where I’ve seen this happening, in most cases Staff are more than happy to take the 20% cut as opposed to losing jobs or half the people have to go and the other people remain. So, it’s a middle of the road solution that employers are instituting in consultation with Staff. I am finding that, in most cases, it’s deemed to be the fairest way to deal with Remuneration for now.