Wednesday | 25 March | 2020
How will the President’s announcement on 23 March of a national lockdown (which will come into effect at 00:00 on Thursday, 26 March 2020), affect my rights as an employee with regard to my leave and salary? Do I need to complete forms to take leave? Should I take unpaid leave?
Remember, the contractual principle is that the employer has an obligation to pay your salary when you tender your services. However, the obligation of remuneration does not arise from the physical delivery of a service, but only from the fact that an employee offers or provides a service.
In Solidarity v The Public Health & Welfare Sectoral Bargaining Council (442/13)  ZASCA 70 (28 May 2014) the Court re-examined this principle. Appellate Judge Ponnan emphasized that the employee is still entitled to payment by, inter alia, referring to the Constitutional Court case Equity Aviation Services (Pty) Ltd v CCMA  ZACC 16; 2009 (1) SA 390 (CC). It was found that, regardless of whether or not an employer made use of an employee’s services, an employee who made himself or herself available under the contract of employment is entitled to payment [para. 11].
Currently, with the lockdown, you cannot tender your services and the employer cannot allow you to come to work. This excludes the essential industries that are allowed to provide services. Does this mean that the principle of “no work, no pay” applies here?
As far as common law and contract law are concerned, this is a conflict between the principle of “no work, no pay” and the contractual obligation that if you tender your services, your employer must pay your salary.
The above contradiction is currently attributed to the unique prevailing situation, namely that our country is currently in lockdown. What should be kept in mind is that this situation is neither the employee’s or the employer’s fault, nor is it of their own making.
The lockdown situation will inevitably mean that losses to the value of thousands of rands will be suffered. Thousands of people will suffer damages and the question is who should bear what amount of the damage. This includes employers and employees – everyone.
Therefore, our approach is that to ensure fairness, employers should reach consensus and an agreement with their employees. We see the law, and we take into account common law as well as labour legislation and regulations, and under these circumstances this should be the appropriate solution.
What is important regarding the concept of fair labour practices (as provided in the Constitution) is that it must be fair to both the employee and the employer. Therefore, it would not be fair if all employees are simply left without pay, and it would also not be fair if all employers must necessarily pay for services that cannot be rendered. Therefore, consideration must be given to what the various legislations do provide.
Let us begin with the various forms of leave. You will have to take your normal leave, and the employer may also compel you to take your normal leave. We again mention that every employer also has the discretion to institute a special type of leave for a case such as this, which would then be paid leave in addition to the employee’s annual leave as provided in section 20 of the Basic Conditions of Employment Act.
If the employer does not grant special leave and you have no annual leave left, what then? This is the situation we are looking at now; you do not have any leave left, you are not ill, and you have nothing at your disposal. You cannot render your services because a lockdown situation prevails; the employer cannot allow you to come to work because it is a lockdown situation.
The President mentioned last night that a special Solidarity Fund would be made available (the similarity between the name of this fund and the Solidarity Movement is a mere coincidence, and the Solidarity Movement does not administer this fund).
According to the President, certain tax concessions will be made, especially with regard to the Pay As You Earn system (PAYE) where, among other things, a tax subsidy of up to R500 per person per month will be granted in certain cases. We also refer to other concessions regarding a reduction in the payment of deductions by employers and employees to the Unemployment Insurance Fund for a certain period. Employers with an annual turnover of less than R50 million per year will also receive relief in the form of later payment of up to 20% of their PAYE obligations, without any penalties being imposed upon them.
The President specifically mentioned that employees are currently the most vulnerable and that provision should be made for them. We briefly mention the availability of a new national disaster benefit that employees may claim from the Unemployment Insurance Fund in addition to the existing sickness benefit, reduced working hours benefit and unemployment benefit.
With the lockdown situation and the above taken into account, our current advice is to make a serious effort to come to an agreement with the employer regarding the payment of leave and salaries. Solidarity has repeatedly underlined the principle of fairness and equity, and it is now of crucial importance that this principle (as prescribed by our Constitution) must be applied by both the employer and the employee.
What happens if the employee and the employer cannot reach an agreement? Here we refer to the special National Disaster Benefit announced by Employment and Labour Minister Thulas Nxesi, about which the department will make more information available.
Refer all inquiries to www.coronavirus.org.za – Solidarity, there for you!
* All information was correct at the time of publication.