Picture: 123RF/SKYCINEMA
Picture: 123RF/SKYCINEMA

There has been a lot of confusion over labour issues arising from the Covid-19 lockdown. Are employees who have been told to stay home and can’t work remotely entitled to be paid?  Can employers make employees take paid leave?

State of disaster notwithstanding, we are still governed by our labour legislation, specifically the Basic Conditions of Employment Act and Labour Relations Act. The former answers both of the above questions categorically.

A wage is defined as “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, a wage is only given in return for hours worked. If the hours are not worked there would be no legal claim for a wage or salary. 

However, the department of employment & labour has asked employers to pay their employees while on lockdown if they possibly can, or to at least try to make up the difference between payments from the Unemployment Insurance Fund and the actual wage.

The issue with regard to forced leave is also determined by the Basic Conditions of Employment Act. Section 20 (10)(b) reads: “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 contractual agreement on the issue of leave the employer is entitled to decide when paid leave must be taken by the employee. If no paid leave is owing employees must take unpaid leave. 

Many employers have chosen to structure hybrid payment solutions to help protect employees who cannot work during the lockdown. Obviously, employees who are expected to work because they perform an essential service must be paid their normal wages or salaries. 

Michael Bagraim, MP
DA deputy shadow employment & labour minister

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