Employment relationships under lockdown – Employer rights and duties during 21-day lockdown
All employers who do not fall within the essential services category have, or at least should have, temporarily closed down their operations after the announcement by our President of the 21-day lockdown to curb the spread of the COVID-19 virus.
The lockdown has caused uncertainty among employers and employees alike; especially regarding aspects related to employer/employee rights during this period.
It is important to note that an employee’s existing rights and responsibilities in terms of their respective contracts will still apply, together with the existing South African Labour Law.
This article will touch on several important aspects which have become extremely relevant during this period and which affect employers and employees alike.
If no services can be rendered is there an obligation to pay the employee?
“The no work no pay principle”
The basis of any employment relationship is that an employee tenders services to any employer to further that employer’s financial interests, in exchange for remuneration. The ‘no work, no pay’ principle infers that an employee is not entitled to remuneration where no employment services are being performed.
Considering lockdown has forced business to temporarily suspend work and close the doors resulting in employees not being able to tender their services under the appropriate circumstances, the general principle, of ‘no work, no pay’ can apply
Considering the trying times we all find ourselves in this should be a last resort and employers who continue as far as possible to pay staff must make it clear that these payments are ex gratia, which loosely means that the payment is done in terms of a moral obligation rather than a legal one. It however goes without saying that if an employer requires his employee to remain at his beck and call during the lockdown period, that employer is liable to compensate his employee.
Can my Employer make me take my annual leave during lockdown?
The Basic Condition of Employment Act and more specifically Section 20(10) of the Act, allows leave to be taken in accordance with an agreement between the Employer and Employee or, if there isn’t an agreement to that effect, at a time determined by the Employer considering the aspects laid out in Section 20 as a whole.
Subsequently, and contrary to the statement made by Minister Thulas Nxesi as published by the Citizen, an employer can determine when leave is to be taken, except when there is a specific agreement in place as mentioned above. An Employer can therefore make an Employee use his or her annual leave during the lockdown period.
What about unpaid leave?
Should an employee have no leave left to their credit in his or her specific leave cycle, the employer may request the employee to take unpaid leave, similar to the ‘no work, no pay principle’. This is however an extraordinary measure and employers should rather look at other options, such as allowing employees to work from home as far as reasonably possible and providing support to employees to work from home or provide other alternative as far as possible.
Forcing an employee to take annual or unpaid leave should be an absolute measure of last resort and it is once again advised that employers consult with employees regarding other alternatives such as shortened hours or working from home.
Considering that all employers and employees in both essential and non-essential services are affected it is a time for both employers and employees to act in solidarity to ensure each other’s longer-term survival.
Is there a short time option?
Where businesses continue to operate either remotely or as an essential service provider but demand has dropped, an employer, in consultation with the employees may agree to shorten the employee’s hours of work and reduce their remuneration, instead of applying the ‘no work, no pay’ principle or sending their employees on unpaid leave. This option may ensure the longer term survival of the business and allow the business to survive this difficult time.
Must I, as an Employer or Employee, still pay pension benefits?
Section 13A of the Pensions Fund Act states that an employer must pay to the fund any contribution for which it is liable in terms of the rules of the fund. Contributions to pension funds are too, dependent of whether employees are able to work or not and subsequently whether the employee is remunerated or not.
If employees are able to work from home and are therefore, remunerated as per usual, employers and employees are required to make the necessary contributions to the pension funds.
In the event that remuneration is reduced, the contribution amount will also be reduced and, in the worst-case scenario where the employee received no remuneration as a result of he or she not being able to work at all, no contribution is payable to the fund.
Employers, however, must also consider the rules pertaining to the specific pension fund in question. Most pension funds make provision for temporary absence from work, breaks in service and/or postponement of contribution payments and reductions of contributions.
In such instances, the employer must submit formal requests to the specific fund after which the fund will consider the request and apply the relevant rules to the circumstances of the employer.
Is there specific Governmental help for affected Employees and Employers during this time?
Yes, the UIF has instituted specific relief and will briefly be discussed below.
COVID-19 Temporary Employer/Employee Relief Scheme (TERS)
The Unemployment Insurance Fund has set up the COVID-19 Temporary Employer/Employee Relief Scheme (TERS) for businesses which were forced to close during the lockdown period. One provision is that the fund will only make payments for a maximum period of 3 months.
The TERS aims to compensate employees who experience a reduction in salary as a result of the lockdown period. To apply for this benefit an employer must initiate the process by sending an email to the email address email@example.com and thereafter an automated reply will be sent with the necessary requirements.
Generally the employer must be UIF registered, apply in the prescribed manner and the businesses closure must be related directly to Covid-19.
* Please note, this is a general discussion piece and does not constitute legal advice. If you need advice tailor made to your business or circumstances, please feel to get in touch with an attorney in our employment law department.
 Act 75 of 1997
 Basic Condition of Employment Act 75 of 1997, Section 20(10)(a)
 Basic Condition of Employment Act 75 of 1997, Section 20(10)(b)
 https://citizen.co.za/business/business-news/2263258/nxesi-companies-cant-force-you-to-take- annual-leave-nonessential-working-is-illegal/ Accessed on 3 April 2020
 Act 24 of 1956