With the COVID-19 pandemic in South Africa, it is important for employers to know that their rights are still valid and enforceable in the workplace. South Africa’s working environment is highly regulated and employers often feel that they are pulling at the shortest end. However, employers must realise that they have many rights in the workplace, but also the responsibility to enforce these rights.

Employers can claim the following rights:

Employees’ fiduciary obligation to continuously act in the employer’s best interest

Fixed standards in terms of quality and quantity

Implementing clear rules in the workplace

• Policies are not underwritten by labour law and the employer should draft his own rules in the workplace. These rules must be reasonable.




• A procedure is a fixed of official way to handle or deal with a situation. Procedures are put in place to inform employees and employers about the necessary steps to be followed when a specific incident occurs.

Applying discipline in the workplace

Restructuring due to operational requirements

Working from home as an option: Employers have been navigating uncharted waters since the national lockdown was implemented end of March 2020. 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.

The pandemic has already had serious implications for many South Africans, as well as a negative economic impact on the country in general. Employers are concerned about staying operational during this declared disaster, especially with regards to loss of income and the employer’s responsibility towards employees.

Employers must make plans to manage businesses profitably and sustainably and many employers implemented the method (where practicable and workable) for employees to work from home. This limits the number of employees in the workplace and allows for certain business activities to continue, subject to set regulations and industry specific restrictions.

Infrastructure and working from home

Productivity and working from home

Discipline and working from home

The most common misconduct linked to employees working from home include absenteeism, misuse of the employer’s property and moonlighting – when the employee takes up a second job without the primary employer’s permission.

Be proactive

• Ensure that the employer’s disciplinary code is relevant and up to date with regards to offences and applicable sanctions and that all employees are aware of what the code entails.
• Ensure that every employee has a detailed job description listing the employee’s duties, as well as the employer’s expectations.
• Implement a policy with regards to the personal use of equipment. Employers must be reasonable and fair and apply discipline consistently.
• Regular communication creates a platform for employees to give feedback with regards to challenges, need and suggestions.

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