DISCLAIMER
This presentation is based on my professional experience and judgements/interpretations of employment-related issues as an HR practitioner. It is purposed to provoke our thoughts on some sensitive issues pertaining to contract of employment and staff management in the face of covid-19.
Corona Virus Disease (COVID–19) was discovered in China in November 2019 and was subsequently declared a pandemic by the World Health Organisation (W.H.O) in January, 2020 due to its highly infectious nature coupled with the absence of a known cure or vaccine for it.
COVID -19 has claimed a lot of lives across the globe and the most appropriate means to curbing the spread was to curtail movement and gathering of people by imposing restrictions on citizenry of various countries of which Ghana is not an exception.
The President, Nana Addo Dankwa Akufo-Addo imposed various restrictions on Ghanaians in order to curtail the spread of the virus, Restrictions such as:
- Closure of borders;
- Restriction on public gatherings;
- Partial lock down in some parts of the country.
The implications of these measures on the general economy, individual citizens and businesses cannot be overemphasized. However, for this discussion, we will limit the repercussions of the restrictions on Employers (Business Owners), Employees (Workers) and Labour Relations (Employment Contracts) with specific focus on the less structured Private Sector Institutions.
What Responsibilities does the employer and the worker owe to each other in the face of this Pandemic?
According to the law that governs Employment Relationships in Ghana, Labour Act 2003 (Act 651), one of the duties of the Employer as stated in Section 9(c) of the Act is to “…take all practicable steps to ensure that the worker is free from risk of personal injury or damage to his or her health during and in the course of the worker’s employment or while lawfully on the employer’s premises”. Therefore, during this COVID-19 pandemic period, the employer is expected to ensure the general safety of workers in accordance with the provisions of the Act by taking practical steps to develop specific workplace guidelines out of the general guidelines on the pandemic. The employer should also ensure that all resources needed for carrying out the guidelines are adequately provided and compliance of such guidelines ensured. The question is, Are there work place guidelines as at now? If No, what are the Labour Unions and the appropriate Authorities doing about it?
The worker on the other hand also owes the duty of care and safety to the employer and colleagues at the workplace as stated in Section 11(f) of the Labour Act “…take all reasonable care for the safety and health of fellow workers”. It is therefore required of the worker during this period to strictly follow the workplace guidelines and the generic directives both at and out of work.
What happens to a COVID -19 positive/quarantined worker?
Since COVID -19 is a health condition, it is expected that the absence from work due to its infection will be treated as sick leave. Any worker who contracts it and needs to be quarantined or isolated is expected to be treated as a sick worker in accordance with Sections 22 and 24 respectively of Act 651. Section 22 “Public holidays and absence from duty due to sickness certified by a medical practitioner, and pregnancy and confinement, shall not affect the annual leave entitlement of a worker.”. Section 24 “A period of absence from work allowed owing to sickness, which is certified by a medical practitioner, and which occurs after the commencement of and during annual leave shall not be computed as part of the leave. “ The above sections of the act clearly provide for sick leave.
Impliedly, the Labour Act provisions on sick leave confer no discretionary powers on the employer to treat absence from work due to COVID -19 infection as annual leave, even if the worker had proceeded on annual leave before contracting it.
The provisions also guarantee a worker’s entitlement to all benefits that accrue to a regular worker any time such a worker is absent from work on health grounds subject to certification by a health professional. The grey area is how the period of absence from work will be treated if the worker was merely quarantined due to contact tracing and was later discharged because he or she had negative test result?
For how long can a worker be granted sick leave by the employer?
Unfortunately, the Labour Act has not provided for the maximum period that a worker can be granted sick leave. The determination of sick leave period differs from one organisation to the other based on their respective Collective Bargaining Agreements/ Employment Contracts. If the sick leave period exceeds those provided for, how long can the employer continue supporting the worker? What instances make it intolerable for the employer to continue supporting a worker on sick leave? What if it is a financial stress on the employer because there are quite a number of staff in this condition and the business now generates little or no income? Does the employer reserve the right to terminate the working relationship on health grounds? All these questions are food for thought in these difficult times.
What about Workers not going to work due to the partial lock down?
Certainly, there are some workers who are no longer going to work (in fact business are closed) due to the partial lock down directive. The reasons provided in the Labour Act which allows for workers to absent themselves from work include sickness (which we have already mentioned), and leave, be it annual or casual/compassionate and what have you. Let us assume that the absence from work due to the pandemic is treated by the employer as annual leave (remember the employer will have to pay all these workers even if the business is closed), will the employer be infringing on the rights of such workers? Let us further assume that consensus was built with all those out of work to classify their absence from work as their annual paid leave bearing in mind that no one knows exactly when this is going to end; what then happens next if this situation persists for a while and each of all the workers under consideration have exhausted their annual leave respectively due to the prolonged nature of the pandemic? What options are available to the employer under such a circumstance? (mind you, the employer at this point is also be struggling to keep the business afloat). Should the employer extend the period of the prolonged absence from work as leave without pay? Is termination an option to the Employer? What are the implications of opting for any of these?
If the employer chooses to terminate the employment relationship in this situation will this action be deemed as fair or otherwise as per the labour Act?
The Labour act has justified circumstances under which the employer can terminate an employment relation with a worker in Section 62 as listed below:
“A termination of a worker’s employment is fair if the contract of employment is terminated by the employer on any of the following grounds:
(a) That the worker is incompetent or lacks the qualification in relation to the work for which the worker is employed;
(b) The proven misconduct of the worker;
(c) Redundancy …;
(d) Due to legal restriction imposed on the worker prohibiting the worker from performing the work for which he or she is employed.”
Can the employer fall on subsection c or d of Section 62 to justify the termination? These are issues that all employers need to pay serious attention to in consultation with their HR Practitioners and legal advisors to avoid prolonged litigations after the pandemic.
What is the way forward to maintain an undamaged Employment Relationship in the future?
This pandemic is a wake up call to Employers, Workers and the Labour unions as well as Authorities that supervise labour relationships to work towards the following:
- Properly developed Conditions of Employment/ Collective Bargaining Agreement;
Act 651 in certain cases provides only guidelines on some of the parameters that regulate employment relationships. For example in the case of sick leave, the period was not stated and in such instances the onus is on the Employer and the Labour Unions to put specifics to all the open ended issues in the Labour Act by developing Employment Terms/Collective Bargaining Agreements. Even though these agreements are expected to be consistent with the Labour Act, they must also suit the environmental conditions of each organisation. All Institutions that have such agreements in place will not be struggling as those without it in these difficult times. These agreements should consider a lot of contemporary HR Management Issues such as the flexibility of occasionally working from home and re-adjusting the 8-hour working period for mutual benefits. The availability of such a document will position the employer properly from falling foul to the law and also protecting the workers from discretionary decisions that are unfavourable to their welfare.
- Business Continuity/Disaster Recovery Plans.
Most well established companies have Business Continuity Plans which details Disaster Recovery strategies. Most of these documents I have cited as an HR practitioner placed little or no emphasis on the employment relationship management and I think that it is time we tried to look at every aspect of our business through the lens of Employment Relationship and staff Management. Disaster does not only affect physical structures/properties but workers as well. There is therefore the need to make provision for employee recovery and succession planning as we do for business relocation. It is important to note in today’s dispensation that workers are needed more so than buildings in the face of a disaster.
- Worker Emergency Fund
This is the time the worker needs to look beyond daily wages, and monthly salaries. The worker must be financially cushioned in times of disability or disaster. I therefore think now is the time for the Tripartite Committee to work towards financial cushioning of workers in times such as this similar to what we do for the businesses. The workers could initiate this through their various Unions or directly with their Employers, (There will be detailed write ups on the 3 points in subsequent publications)
What else can one be waiting for to put his/her her house in order other than COVID-19. Let us do our best in developing clear employment conditions to limit the unnecessary use of discretions in dealing with employment related issues. We should use professionals to develop such documents detailing types of employments with duties/responsibilities and expectations of both the employer and the worker. Let us not leave issues to chance. Let us allow the HR Role to function.
IT BEHOVES US ALL TO ADHERE TO THE DIRECTIVES AND STAY SAFE
