The COVID-19 lockdown has created various complex legal conundrums regarding whether employees should be paid during lockdown, whether they can be forced to take annual leave, or whether employers can dismiss employees due to financial issues. In this article, we will unpack some of these legal issues and discuss the legal rights of employees during this unprecedented time in South Africa.
Must my employer pay me during lockdown?
The Basic Conditions of Employment Act of 1997 (BCEA) defines “wage” as “amount of money paid or payable to an employee in respect of ordinary hours of work or if they are shorter, the hours and employee ordinarily works in a day or week.” Therefore, in terms of the BCEA the employer is under no legal obligation to pay an employee during the lockdown period if they are not working based on the “no work no pay” principle.
The Department of Labour issued a directive on 26 March 2020 and amended on 8 April 2020 advised that employers are encouraged to pay their employees’ salaries during the lockdown. However, please bear in mind that this is only a recommendation and there is no law in place to compel the employer to do so
There is assistance from The Department of Labour for employers who comply with this recommendation. These employers will be able to claim through the Temporary Employer/Employee Relief Scheme (TERS). TERS may be claimed when employees have been temporarily laid-off. “Temporary lay-off” is defined in the amended directive as ” a reduction in work following the temporary closure of business operations, whether total or partial, due to COVID-19 pandemic for the period of the National Disaster.” The employer has to apply for TERS on behalf of the employee.
Can an employer force an employee to take annual leave during lockdown?
Section 20(10) of the BCEA provides that “Annual leave must be taken (a) in accordance with an agreement between the employer and employee; or (b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section.” Therefore, no law prevents the employer from requesting that employees take their annual leave during lockdown.
In the directive from 26 March 2020 it stated, “During the lockdown period, an employee may be requested by the employer to take annual leave from his/her annual leave credits. The BCEA allows employers to determine the time that employees can take their annual leave.” The Department of Labour further stated, “In as much as employers are within their rights to insist that employees take annual leave during the lockdown, as the Department, we encourage employers not to request employees to utilize their annual leave credits for the lockdown, but rather to utilize the financial assistance that the department has placed at their disposal through COVID-19 Temporary Employer/Employee Relief Scheme (TERS) in cases where companies cannot afford to pay employees.”
Should an employee have no leave credit available in their leave cycle, the employer may request the employee take unpaid leave. Forcing an employee to take unpaid leave should be an absolute last resort. Employers should first consider employees working from home or shortened work hours.
Can I get dismissed/retrenched during lockdown?
The normal South African Labour laws still apply during lockdown. Therefore, if an employer dismisses an employee, it needs to be procedurally and substantively fair. If the employee has not committed misconduct, poor work performance or incapacity related to illness, the dismissal would be substantively unfair. Alternatively, if there is substantive fairness but the employer fails to comply procedurally with a disciplinary hearing, the dismissal would be procedurally unfair.
Employers that are in financial distress need to consider all alternatives including short time and retrenchments. Employers who are considering these alternatives still need to comply with Labour law before retrenching employees or placing them on short time. Failing which, the employer opens himself up to unfair dismissal referrals at the CCMA.
 Government Gazette No: 43216