Employers have been navigating uncharted waters since the national lockdown was implemented end of March 2020. So many challenges arise: sick leave, health and safety, retrenchment, short time, UIF, payment of salaries, uncertainty and discipline in the workplace, etc. The lockdown was implemented to curb the spread of the COVID-19 virus in order to allow time to prepare South Africa’s health system’s capacity so as to be able to accommodate COVID-19 cases.

Paid sick leave

• If the employee tests positive for COVID-19, the number of days’ paid sick leave will differ from employee to employee depending on the rate of recovery. An employee may only be allowed to return to the workplace once the employee has undergone a medical evaluation confirming that the employee tests negative for COVID-19 and is fit to work.
• If the employee tests negative for COVID-9, the employee must return to work immediately. The absenteeism whilst awaiting the test result will still be dealt with as paid sick leave.

Paid sick leave is exhausted

COIDA and sick leave

Have an employment contract in place

Use the employment contract to your benefit

Employers should use labour law to their advantage to protect the business and limit risk by proactively addressing possible future disputes between the employer and employee. By including proactive clauses in the employment contract, the employer is better positioned with regards to the employment relationship going forward. Include the following proactive clauses:

• References to policies, procedures and a disciplinary code that describes rules and procedures the employer and employees must adhere to. The disciplinary code serves as a guideline for employers of what the appropriate sanction is for certain offences. The disciplinary code also ensures that all employees are aware of the rules in the workplace as well as the consequences should these rules be broken.
• Time periods – probation period, retirement age, short time, lunch breaks, etc.
• Consent – medical testing, alcohol and drug testing
• Consent – deductions for damages, training, etc.

• Declaration of duties – what is expected from the employee with regards to duties and the employer’s fixed operational standard
• Restraint of trade and confidentiality agreement – this is crucial where specialised business activities take place to protect confidential information, unique methods and procedures, patents, etc. and prevent this sensitive information ending up with the competition.

Labour law sets strict requirements that employers must comply with. To comply with legislation is not negotiable. The scope of labour law can be overwhelming as it is a highly regulated environment. The World Economic Forum published the annual Global Competitiveness report in October 2019. This report measures performance according to 144 indicators that influence a nation’s productivity, benchmarking the drivers of long-term competitiveness. In the report 141 economies were evaluated, accounting for 98% of the world’s GDP.

Out of 141 countries, South Africa was rated as follows with regards to the labour environment:

• Cooperation in labour-employer relations: 139/141
• Hiring and firing practices: 129/141
• Flexibility of wage determination: 134/141
• Ease of hiring foreign labour: 123/141
• Pay and productivity: 83/141
• Worker’s rights: 26/141

A persistently insufficient labour market flexibility is indicated in the report as one of the key factors holding back South Africa’s competitiveness.

What can employers do to protect their businesses?

Firstly, make sure you comply with labour law. Secondly, use labour law to protect your business and minimize risk by proactively addressing possible future disputes between the employer and employee.

Be proactive

The employment contract is the most important document in the relationship between the employer and employee. One of the biggest mistakes employers make is to settle for a generic employment contract that offers minimal protection when there is a dispute in the workplace. When drafting an employment contract, the employer must take care to ensure that the contract complies with all applicable labour legislation depending on the specific industry.

Proactive clauses includes:

• Reference to policies, procedures and a disciplinary code that describes rules and procedures the employer and employees must adhere to.
• Time periods – probation period, retirement age, short time, lunch breaks, etc.
• Consent – medical testing, alcohol and drug testing
• Consent – deductions for damages, training, etc.

In addition to the employment contract, the employer can add annexures to further protect the business going forward.

Typical annexures include:

• Declaration of duties – what is expected form the employee with regards to duties and the employer’s fixed operational standard
• Restraint of trade and confidentiality agreement – this is crucial for more specialised business activities to protect confidential information, unique methods and procedures, patents, etc. and prevent this sensitive information ending up with competition

In conclusion

The productivity and financial success of any employer’s business depends on various factors, of which employees’ presence and effective service delivery in the workplace, makes out a critical part.

How does remuneration work for work done on a public holiday?

South Africa has 12 official public holidays. The PHA determines that if a public holiday falls on a Sunday, the following Monday will also qualify as a public holiday. Employers must keep in mind that the calculation of remuneration with regards to any public holiday must be handled in the same way, regardless of whether the public holiday falls on a Sunday.

The calculation of remuneration payable for public holidays can be confusing. Two scenarios are applicable:

Scenario 1: The public holiday falls on a day that the employee would normally work:

• Remuneration if the employee is expected to work on this day: double the employee’s daily wage (regardless of the number of hours worked).
• Remuneration if the employee is not expected to work on this day: the employee’s normal daily wage.

Scenario 2: The public holiday falls on a day that the employee would not normally work:

• Remuneration if the employee is expected to work on this day: the employee’s daily wage plus the employee’s hourly rate for hours worked (take note that the employee must be payed for a minimum of at least 4 hours, even if the employee worked for less than 4 hours).
• Remuneration if the employee is not expected to work on this day: no remuneration.

Reasonable notice and exchange of public holidays

The employer must give employees reasonable notice should employees be expected to work on a public holiday. In terms of the PHA a public holiday can be exchanged with another day, but only when there is a written agreement in place with an employee for this exchange. When a public holiday is exchanges, the employee will only receive the normal daily rate for both days.

Contact the LWO for any assistance or advise with this matter.

It is common in the workplace and in terms of the Commission for Conciliation, Mediation and Arbitration (CCMA) and Labour Court rulings that the reinstatement of an employee is seen as an appropriate finding for cases of unfair dismissal in terms of the Labour Relations Act. The purpose of reinstatement is primarily for the employee to be placed in the position the employee would have been before the unfair dismissal.

Is the reinstatement of a deceased employee possible?

The answer is YES. The case law of the CCMA and Labour Appeal Court on this aspect is decisive that deceased employees are still entitled to their day in court and even after death to be reinstated.

The decisions are based on the fact that even if an employee dies, the benefits in terms of the employment contract are not forfeited at death if a ruling of reinstatement is ordered. In terms of legislation that that regulates deceased estates, the benefits will accrue to the deceased estate of the employee and can the executor enforce these benefits.

Even though the deceased employee is not actually reinstated, the employment benefits such as a monthly salary, annual leave credit and any other remuneration that the employee is entitled to, will be owed to the employee form the day of reinstatement up to the day of death.

Important to note:

It is important to remember that the exception, namely where it is practically impossible to reinstate an employee due to the employer’s operational requirements, will not apply in cases where it is ordered that a deceased employee be reinstated.

The LWO assist employers to comply with labour law and protect your business. Contact us for any assistance and advice regarding this matter.