Opinion with regard to payment during lockdown and compulsory leave

capechamber.co.za-Opinion with regard to payment during lockdown and compulsory leave

Written by: Michael Bagraim Deputy Shadow Minister of Employment and Labour (DA)

There has been a lot of confusion about issues arising out of the lockdown.   Firstly, there has been confusion about the payment of wages where employees have been ordered to remain at home and not attend work.  The question arises as to whether the employees are entitled to be paid?   Secondly, may the employer place the employees on paid leave during the lockdown period?

We must remember that we are governed by our labour legislation.   Two key pieces of labour legislation namely, The Basic Conditions of Employment Act (75 of 1997 – as amended) and The Labour Relations Act (66 of 1995 – as amended).   The Basic Conditions of Employment Act refers to both the questions above and answers these questions categorically.

The question of payment during the lockdown period is simply answered as follows:   The definition of wage is as follows “wage means the amount of money paid or payable to an employee in respect of ordinary hours of work or if they are shorter than the hours an employee ordinarily works in a day or week.” In essence wage is only given in return for hours worked.   The issue is further clarified in terms of Chapter 4 (Particulars of employer and remuneration).    Section 35(1) of The BCEA states as follows “an employee’s wage is calculated by reference to the number of hours the employer ordinarily works”.  The reality is that the employee is entitled to be paid in exchange for hours worked.   If the hours are not worked there would be no legal claim for a wage or a salary.   Therefore, to simply answer the question:  There is no entitlement to payment whilst employees are on lockdown.   There has been a request made by the Department of Employment and Labour for employers to consider paying the employees whilst on lockdown or to at least try to make up the difference between payment from the Unemployment Insurance Fund and the actual wage.

The issue with regard to forced leave is once again determined by The Basic Conditions of Employment Act and is succinctly answered by Section 20 (10)(b).   This reads as follows : “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”.  It is therefore absolutely clear that if there is no agreement about the leave to be taken then the employer will make a decision as to when paid leave must be taken by the employee.   To answer the question posed above, the employer may decide that employees are to use up their paid leave during this lockdown period.  Obviously if no paid leave is owing then the employees are in any event on unpaid leave. 

The Basic Conditions of Employment Act has not been suspended or overridden by any of the Regulations or statements made by the President or the various Ministries.

To sum up employees are not entitled, by law, to be paid during the lockdown period if they are not working and the employer may unilaterally place the employee on paid leave if there is paid leave available to that employee.

It is fully understood that both employees and employers are going through enormously trying times and the financial situation has affected every single person in South Africa.  The Department of Employment and Labour has put out a plea to employers to consider paying the employees whilst on this lockdown if payment is affordable.   Many employers have chosen to structure hybrid payment solutions so as to ensure that the employees are protected during this time.

Obviously employees who are expected to work because they belong to an essential service would be paid their normal wages and salary.   Many employees have asked whether they are entitled to sort of danger pay or overtime payment.  This is clearly answered by stating that there is no right to danger pay or overtime payment if they are not working overtime.

Many other labour legal questions have arisen which questions are not tackled in this opinion.

MICHAEL BAGRAIM (BA LLB)