On 26 March 2020, the nationwide lockdown in South Africa commenced as part of the efforts to save lives and curb the spread of the coronavirus in the country.
As a direct result of the lockdown, many businesses are currently at a standstill, unable to conduct operations, leaving both employers and employees vulnerable and unsure of their legal rights during this time of economic uncertainty.
Employer’s rights during COVID-19
During this time, employers are entitled to do the following measures:
1. Remote working to be encouraged
Employers are encouraged to as far as possible put measures in place for their employees to work from home where reasonably possible.
2. Request employees to take their annual leave
According to the Basic Conditions of Employment Act (BCEA) employers are within their rights to inform their employees when and how their annual leave should be taken.
Businesses are however encouraged to make use of the financial assistance placed at their disposal by the COVID-19 Temporary Employer / Employee Relief Scheme (TERS) before requesting their employees to utilise their leave credit during the lockdown.
3. Temporary lay-off’s
In a directive issued by the Department of Employment and Labour in the Government Gazette (no. 43216, dated 8 April 2020), employers are allowed to reduce the working hours of their employees.
A temporary lay-off is defined as a “reduction in work following a temporary closure of business, whether total or partial, due to Covid-19 pandemic for the period of the National Disaster.”
The directive further states that “should an employer as a direct result of Covid-19 pandemic close its operations, or a part of the operations, for a 3 (three) month or lesser period, affected employees shall qualify for a Covid-19 benefit.”
Thus, in the event of an employer reducing working hours partially or entirely, the fund provides for financial relief for businesses in order to stay afloat and compensate for the loss of income experienced by employees during the global pandemic.
4. No work, no pay principle?
An employer may legally implement the no-work-no-pay principle during the lockdown under the following conditions:
Force majeure (Acts of God) contractual provision:
A force majeure clause excuses a party from performing some or all of its contractual obligations should certain circumstances arise preventing performance of a party’s obligations under said contract.
If a force majeure clause is contained in a contract, an employer may be entitled to rely and implement this principle during the COVID-19 global pandemic. Employers and employees are however encouraged to carefully analyse the particular wording used to describe and define ‘force majeure” in their respective contracts.
Common law principle of impossibility of performance
In terms of South African law, the applicability of supervening impossibility is dependent on factors such as the nature of the contract, the relationship of the parties, the circumstances in question as well as the nature of the impossibility.
Thus, if performance of contractual obligations i.e. employment, has become objectively impossible as a result of unavoidable or unforeseeable events to no fault of either party to the agreement, the parties’ rights to receive performance will become extinguished.
Importantly, if performance of the obligations as envisioned in the agreement becomes illegal, said performance will also be seen as objectively impossible.
5. Retrenchments
Businesses are entitled to exercise the right to retrench employees during this time.
Retrenchments are governed by sections 189 and 189A of the Labour Relations Act (LRA). As such, employers need to ensure statutory compliance with the LRA if it is deemed necessary to retrench employees.
Employees’ rights during COVID-19
As an employee, you have the following rights:
1. Dismissal
If your job is not deemed an essential service, you cannot be dismissed for not reporting to work during the nationwide lockdown.
2. Working remotely
If employees are able to work from home, they are required to do so.
3. TERS COVID-19 benefit
If your working hours have been reduced or your employer has closed its operations entirely, your employer is encouraged to apply for the TERS COVID-19 benefit as mentioned above. Employees cannot apply for this benefit directly and the application must be made by the employer. This benefit is aimed at compensating you, the employee, for income lost in the event of your employer being unable to pay you.
4. UIF reduced time benefit
Unlike TERS, employees if registered for UIF, can directly apply for a UIF reduced time benefit. This benefit was first introduced in 2018 and can be utilised during the COVID-19 crisis.
In essence, employees can claim from their UIF where a company shuts down for a certain period or implements reduced or short time. The benefits payable is the difference between what the employer pays and the normal UIF benefits payable should an employee lose employment.
Please note that an employee cannot receive both the COVID-19 TERS benefit and UIF reduced time benefit simultaneously.
5. Compensation for Occupational Injuries and Diseases Act (COIDA)
COVID-19 is deemed to be an occupational disease for purposes of COIDA. As such, if an employee contracts the virus during the course and scope of his/her employment, the employee will be entitled to apply for compensation from the compensation commissioner.
If an employee did not contract COVID-19 during the scope and course of his/her employment or cannot prove that he/she contracted the virus during the course and scope of employment, then absence from work as a result of the virus is deductible as sick leave by the employer.
6. Death benefit
In the event of an employee passing away during this time, certain beneficiaries are entitled to apply for financial benefit from the UIF as a result of the loss of income suffered. These beneficiaries include (but are not limited to) spouses, life partners and children of the deceased.
Speak to a labour law expert
For legal advice on the matters related to the workplace and COVID-19, contact our experienced Employment and Labour Law team who can assist you with tailored responses to your individual and business needs during these challenging circumstances.
For Labour and Employment Law expertise
Wesley Scheepers wesley@abgross.co.za
Jeremy Simon jeremy@abgross.co.za
Disclaimer
The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.