Thulas Nxesi. Picture: TREVOR SAMSON
Thulas Nxesi. Picture: TREVOR SAMSON

The Covid-19 Temporary Employer/Employee Relief Scheme (Ters) is unconstitutional to the extent that it does not provide for qualifying employees to apply for the relief benefit themselves if their employers fail to do so, NGO Casual Workers Advice Office (CWAO) has said.

The CWAO has launched a labour court application against labour & employment minister Thulas Nxesi; co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma; President Cyril Ramaphosa; and Teboho Maruping, commissioner of the Unemployment Insurance Fund (UIF).

The case is expected to be heard on May 28.

In March, Nxesi launched Ters, administered by the UIF, to provide relief to those in formal employment expected to lose their income due to the coronavirus lockdown. The UIF has disbursed about R11.3bn in Covid-19 relief benefits to date.

CWAO co-ordinator Ighsaan  Schroeder, in his signed affidavit being deposed, stated that though Ters “is a laudable effort” by the government to protect workers, it has “two fundamental flaws”.

The directive governing Ters, he said, “irrationally limits the reach of the scheme” as it stipulates that only employers who have registered with the UIF can apply on behalf of their employees.

“Second, only employers — and not employees — are able to apply for the benefit in terms of the directive. As such, employees whose employers fail to apply for the benefit have no alternative mechanism though which they can access the relief,” said Schroeder.

He said this renders the scheme ineffective in cases where employers refuse or fail to apply for the Covid-19 benefit on behalf of their employees, adding that these flaws “render the directive irrational, unlawful and unconstitutional”.

The CWAO wants the court to allow for a provision permitting these employees to apply in person in the event that their employers fail to do so within a stipulated period.

The department of employment and labour told Business Day on Thursday: “We confirm receipt of the court application from the CWAO. This is a legal matter and we are processing the application.”

Both Dlamini-Zuma’s spokesperson Lungi Mtshali, and Maruping’s spokesperson Makhosonke Buthelezi, did not immediately respond to questions sent to them. However, earlier on Thursday, Maruping, in an interview with the SABC, said companies affected by Covid-19 must apply for Ters on behalf of their employees, adding that, “We have made it clear as a department that the burden of compliance lies with the employer.”

Maruping said that if the employee proved an employment contract existed between themselves and the employer, “we will process the claim for the employee because we don’t want to compromise the employee, and we will tackle the employer thereafter”.

He said the UIF has come across instances in which employers were withholding their employees’ contributions to the fund.

“We will be sending our inspectors to some of these companies, where we have picked up such negligence and illegal behaviour so our inspectors can take the matter forward.”