General Principles, Whether The Workplace Is Open Or Closed
Working from home and creating a home workplace
6. Whether, within the corporate environment or, alternatively, within the small business environment, this option is permitted.
7. If the employer requires the employee to work the ordinary hours of work, that the employee used to work whilst at the workplace, from home, then the employee is entitled to the normal remuneration so earned.
8. If, however, the employee is only required to work shortened hours from home (i.e. the employer still demands performance, but this entails partial performance), then it is advised that, subject to what is stated herein, the parties negotiate a reduced remuneration (and/or benefits). This negotiation scenario should not be confused with the impossibility of performance scenario dealt with herein, which essentially ‘excuses’ both parties (employer and employee) from demanding any performance and therefore is not subject to negotiation.
9. On 17 March 2020, the Minister of Employment and Labour announced that, if employees are required to subject themselves to self-quarantine for 14 days (or longer), such leave will be regarded as ‘special leave’ and the employees will be permitted to apply for UIF benefits which will be paid on condition that the quarantine meets the necessary requirements.
10. It is permissible that the employer may require an employee to proceed on annual leave. However, this should not be done during periods of self-isolation or quarantine (where ‘special leave’ applies).
11. In short, this entitlement of the employer is only applicable to the statutory portion of annual leave (i.e. 15 business days).
12. This entitlement of the employer to require employees to take annual leave is obviously subject to contractual rights and obligations (contained in the employees’ contracts of employment, leave policy or practices so applicable, as well as collective agreements).
13. In terms of the statutory regulation of annual leave by the BCEA (s20):
13.1 such leave must be granted by an employer in terms of an agreement between the parties;
13.2 in the absence of an agreement, the employer may determine the time that such leave is to be taken – as is the case with the current lockdown; and
13.3 during the period of annual leave, the obligation of the employer is to continue to remunerate the employees.
Employees’ sick leave entitlement
14. In terms of s22 of the BCEA, the ‘sick leave cycle’ means the period of 36 months’ employment with the same employer immediately following an employee’s commencement of employment.
15. During each sick leave cycle, an employee is entitled to paid sick leave equal to the number of days the employee would normally have worked during a period of six weeks.
16. For an employee who works a five-day week, this, for instance, amounts to 30 days’ sick leave per 36 months of employment.
17. Subject to s23 of the BCEA, an employer is obliged to pay an employee for sick leave as follows:
17.1 the wage the employee would ordinarily have received for work during such period; and
17.2 same to be paid on the employee’s usual pay day.
Employer not required to pay sick leave
18. In terms of s23 of the BCEA, an employer is not obliged to pay an employee for sick leave if:
18.1 the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period; and
18.2 on request from the employer, does not produce a medical certificate stating that he or she was unable to work for the duration of the absence, on account of sickness or injury.
Medical certificate requirements
19. It is required that the medical certificate be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council. Obviously, if an employee claims his or her entitlement to sick leave on the basis of having contracted the coronavirus, this should specifically be mentioned on the medical certificate and it is preferable that the test results be attached.
Exhaustion of sick leave
20. It is self-evident that, in terms of the BCEA, an employer is not required to pay an employee for sick leave taken after the statutory sick leave entitlement has been exhausted.
21. Obviously, this scenario may be differently regulated by means of contractual rights and obligations contained in an employment contract, sick leave policy or collective agreement.
22. A business that is permitted to be open during the period of lockdown (e.g. delivering essential services), but whose business levels have been negatively affected by the current circumstances, may wish to reduce the salaries (and/or benefit) of its employees accordingly. It is advised that this is only permissible once, through the process of negotiations, agreement has been reached on such reduced salary. This negotiation scenario should not be confused with the impossibility of performance scenario dealt with herein, which essentially ‘excuses’ both parties (employer and employee) from demanding any performance and therefore is not subject to negotiation.
23. Also, if, during the lockdown period, the business is totally closed but the employer wishes the employee to perform certain functions from home, then the advice is that the same principle as ibid is applicable.
24. However, if the business of the employer is totally closed during the period of the lockdown, the employees have been sent home and the employer does not require its employees to perform any functions whatsoever, then the scenario should be dealt with as a supervening impossibility of performance, as set out hereunder.
…/continues in article 3 of 4
During the recent live broadcasts of the SALLRs’ 36th annual seminar, held from Wednesday 12 August 2020 to Thursday 3 September 2020, the SALLR team conducted various surveys covering a variety of issues and, set out herein, are the combined results obtained from such five live broadcast sessions. Kindly note that the percentages have been rounded off.
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