How does Covid impact on the workers right’s regarding payment, leave, retrenchment and sick leave?
As coronavirus (CoVID-19) hits in South Africa, employers are suddenly faced with closed business, businesses and that can’t operate at full capacity or can’t operate as they did in the past.
In terms of the Basic Conditions of Employment Act as well as the Labour Relations Act (not to mention the Constitution of the Republic of South Africa) we are in the fortunate position of having some guidelines in these uncertain times.
Employees should keep themselves up to date with Government Gazetted Regulations as well as Acts. To keep yourself in the loop, monitor the Government website continuously at https://www.gov.za/Coronavirus
In terms of South African laws as per above, employers have a duty to maintain a safe working environment for it’s employees and any members of the public who may enter the employers premises. Thus, certain steps should be taken by the employee as set out in the Government website such as ensuring that employees sanitize, implement social distancing and wear a mask. If the employer fails to do this, the employee may be in danger and thus may have a claim to refuse to work until the work environment is safe.
The Employer should implement strict procedures such as sanitizing before and after leaving the building, implement social distancing amongst employees and that employees should wear a mask. These measures should be carefully explained to managers who can then enforce such standards amongst the workers and staff.
If an employer fails to ensure a safe working environment, the employer can be said to be negligent. Should an employee contract COVID or sustain any other injuries at work, the employee may claim compensation via the Compensation for Occupational Injuries and Diseases Act. However, if it can be proven that the employer was negligent in the workplace, the employer may be liable for additional payments that the Fund doesn’t cover.
Businesses should consider whether the employees can work from home by providing them with airtime and data which they can use to contact customers as well as have meetings etc with the employer via Skype, Whatsapp or telephone. Of course, this may require that the times that an employee used to work may change (obviously without exceeding the maximum amount of hours as per the Employment Agreement and/or Basic Conditions of Employment Act as well as the Labour Relations Act). The Employer may also wish that the Employee perform additional or other duties during this time. Again, the labour law and Employment Contract will be paramount at determining how much an Employer can unilaterally impose on an employee. If the Employment Contract is silent: a consultation process must be followed with the Employee. Ensuring that your employment Agreements are professionally drafted will go a long way to ensuring the continuity of your business!
Due to the financial impact the business may be experiencing due to the restrictions on trade, the employer may wish to retrench an employee for good or for a limited period. If temporary retrenchment is agreed upon, the duration thereof will depend on the unique circumstances that the business finds itself in ie. will it recoup after a week? a month? longer? The particular circumstances of the business will be of paramount importance here.
The employer must always ensure that they comply with the Employment Agreement, the Labour Relations Act, the Basic Conditions of Employment Act as well as the Constitution whenever embarking upon discussions with employees regarding retrenchment (whether permanently or for a limited period). Should a fair process not be followed the employer may well find themselves at the CCMA or Labour Court explaining why they failed to apply a fair and legal process.
Something that may be considered is using annual leave to ensure that an employee remains fully paid, but will then not be able to take that leave later. This would usually be the case when the business is completely closed and does not operate at all. Annual leave is generally 15 work days, so the employer may request the employee to put in 15 days paid leave. It is important to note that leave is just that: the employer cannot force the employee to take leave and then still demand that the employee work. Again, a consultation process with the employee(s) would be the employers best solution on how to handle the situation.
If the employee becomes sick: this is not annual leave, but sick leave. The rules stay the same, if the employee works a 5 day work week they are entitled to 30 days in a 3 year leave cycle. Of course, the employer is entitled to require a doctor’s note (or other valid medical certificate). If the sick leave is ex
Should the employee have a sick child or partner that they need to take care of or take to the hospital etc, the employee may take family responsibility leave as gazetted from time to time (or as per Employment Agreement).
For more information and to set up a consultation please contact us at https://www.hamelattorneys.co.za/contact/