Will businesses ever reopen, or employers rehire again?

While those countries around the world that have had to deal with the covid19 virus are either staggering back to work in stages or closing again due to the second wave, TT, which even now has only begun to deal with a community outbreak, has also opened various functions cautiously with limited restrictions.

Under the directives of the WHO, countries in our hemisphere have all issued guidelines as to how this should be done to ensure maximum safety to the population. From an industrial relations perspective this is wise to ensure understanding by citizens, as we may have to go through these procedures several times in the future. As we are seeing in other countries, the virus comes in waves and, as a result, so do lockdowns and reopenings of business places. Wisdom requires preparation.

TT is following the WHO guidelines and those from the Centers for Disease Control and Prevention as were most other jurisdictions abroad until the second wave hit. These are the ones we have been sensibly following, as we simply do not have the testing and research facilities to develop our own.

Almost all businesses and public spaces are reopened with public health and workplace safety restrictions in place.

Indoor and outdoor gatherings are being increased but physical distancing remains a requirement for people not from the same household or social circle (as will the use of PPE).

These all appear to make sense as they are being done on a step-by-step basis. In other jurisdictions they are done with local health authorities, district by district, for overseeing the openings and monitoring the results. Here, rather than being monitored by regional health teams trained to do so, it appears that the monitoring has been done by the police. Which is somewhat strange.

While we assume that employers are required to ensure that all employees follow safety and health regulations and may be subject to penalties if they are not followed, new laws have not been passed and penalties not set by legislation.

Layoffs, called furloughs, according to the national labour codes in the Americas, can last for varying lengths of time, that is less than three months, three to six months with a fixed date of recall or more than three months where the employer still pays some percentage of wages, continues to keep up benefit entitlements, such as pension and health , and in those jurisdictions, but not in ours, laid off receive unemployment benefits usually from 13-15 weeks.

Under the severance legislation here, Section 19 allows a form of “layoff” where the employer continues to pay the worker 50 per cent of his or her wages for up to three months after the notice of retrenchment is given or until the worker finds employment. After that, if the worker has not been re-employed severance pay is due and must be paid within 30 days, less the amounts already paid during layoff. Severance is due except where the business is bankrupt and closes down entirely.

It is uncommon to see clauses for layoff in collective agreements in TT, but in light of the “new realities” which foresee periodic waves of epidemics, they are predicted to reappear. Under normal circumstances, such terminations without the agreement of the worker can be considered as “constructive dismissal”. But these are not normal circumstances.

According to common law in all jurisdictions the concept of force majeure can be taken into consideration by industrial tribunals and is regarded as a legitimate and justifiable reason for termination of a worker’s employment with or without notice.

Force majeure can include fire, floods and “acts of God.” The pandemic and its consequential lockdowns are considered to be acts of God. While in TT we have not had the full force of a pandemic, we now seeing it coming and we have felt the consequences of it via government edict. Those employees who were laid off as a result of the lockdown could not be regarded as unjustifiably or constructively dismissed.

Where the difficulty arises now is when, how and whether to resume the employment contract once step six, the opening of our borders, which will have to happen sometime, is announced and we must be prepared for that eventuality. While some employers will take advantage and use the pandemic to cut staff, to get rid of staff that are unproductive or the ones with “attitude,” most want to stay open. That is what they are in business for, how they make a living and support their families, but many may have no choice.

I walked through a Port of Spain mall earlier this week and saw seven businesses shut down. Almost all the others were empty of customers with big sale signs at their entrances. Matters to be taken into consideration will be whether markets and customers will return. In many cases, as we have seen, they have not. Can the employer afford to open at all? Can the employer afford to re-employ all or what percentage of laid-off workers? Will organisations remain partially or wholly in the “working from home” mode until the economic picture improves and when will that happen?

Each case may differ and employers are encouraged to get professional advice where doubts exist. No two cases will be the same.