02 Apr The rights of employers and employees during the COVID-19 (coronavirus) lockdown
The working class across South Africa are frustrated subsequent to the President’s address to the nation on 23 March 2020 when he announced a nationwide lockdown with effect from midnight the 26 March 2020 as a result of the spread of the Covid-19, better known as coronavirus. Covid-19 is described as an infectious disease which is caused by a coronavirus. The 21-day lockdown has been implemented in order to reduce the spread of the virus and many South Africans find themselves anxious about the adverse effects the lockdown will have on their employment. It is therefore important to look at what rights both the employer and employee have during this mandatory lockdown.
Rights of the employer
During the period of the national lockdown, an employer may request an employee to take annual leave in accordance with the provisions as set out in section 20 of the BCEA and the contract of employment between an employer and an employee.
When an employee takes their annual leave, an employer must remunerate the employee leave pay. Should an employer not be in a position to pay his/her employees their full salaries, an employer may apply for the temporary relief which has been set by the South African government to ensure that both employers and employees don’t suffer financially during the lockdown.
Unfortunately, the lockdown may result in companies having little or no work for employees and not generating revenue for the company. This reality may lead to employers considering retrenchment as a form of relief from the financial pressures that might be experienced by the employer. In terms of section 189 of the Labour Relations Act 66 of 1995 (as amended), an employer is entitled to dismiss one or more employees based on operational requirements. In the event that an employer takes this direction, due process needs to be followed with regards to retrenching employees.
Rights of the employee
An employee is entitled to take his/her annual leave during the covid-19 lockdown period and will therefore receive leave pay “at least equivalent to the remuneration that the employee would have received for working for a period equal to the period of annual leave.” Another option an employee has is to take unpaid leave during this lockdown upon a written request to the employer.
In a case where an employee cannot earn a salary because of the employer being unable to make such payment, the employee will be entitled to an Unemployment Insurance Fund (as amended) benefit which will be applied for by the employer on behalf of the employee. If an employee is on unpaid sick leave, the employee will be entitled to claim an illness benefit from the Unemployment Insurance Fund (as amended).
Even though it is within the rights of an employer to request an employee to take annual leave and/or retrench employees as a result of the negative impact the lockdown has on business, however employers are advised to rather “utilise the financial assistance that the department has placed at their disposal through the COVID-19 Temporary Employer/Employee Relief Scheme (TERS) in cases where companies cannot afford to pay employees.”
Employees on the other hand will be entitled to get some form of relief provided for by the South African government where employers are unable to pay full salaries because of the poor cashflow in the employer’s business.