Introduction

The Coronavirus Covid-19 pandemic (hereinafter “the pandemic”) has turned the world upside down. That involves virtually every single aspect of our lives – Our family life, our social life, our spiritual life, our political life, our sporting and recreation life, our cultural life and last, but not least, our work life.

Even our constitutional safeguards are not left untouched by the pandemic, notably by restricting our movement within society and geographically, as result of the pandemic being formally declared a national disaster. Not surprisingly, there is a lot of confusion about what level of exercise of rights is permitted during lock-down, who is responsible for what and who is to blame for the predicament we find ourselves in, especially when it comes to our rights as employers and employees.

This article tries to bring some sense and understanding into the latter question.

A perspective on the relevant common law principles

Common law is rooted in custom and judicial precedent and normally precedes, in the form of a “foundation”, the statutory law as we know it.

Our courts interpret and sometimes develop the common law by way of legal precedent, which invariably finds its way into statutory law. Legal precedent is a particular recognised source of the law.

This being the case, common law always remains a premise to fall back on where statutory law and precedence are silent or unclear in respect of a particular legal situation or question.

This brings me to the relevance of common law in respect of the impact the pandemic has on our world of work.

The question is: To what extent are the rights and obligations of employers and employees fairly and justifiably curtailed during lock-down?

Under common law it is understood in its most pristine sense, that the employment relationship rests on two fundamental principles, namely: the employee performs predetermined and agreed work and the employer rewards the employee for performing the work in a predetermined way.

For as long as the employee avails himself/herself to do the work agreed to, the employee is legally entitled to be rewarded. This is so, even where the work cannot be performed through no fault of the employee, such as during suspension, pending disciplinary proceedings.

Within context of suspension, the employer prohibits the employee from performing any work, based on a suspicion of wrong-doing on the part of the employee, in which event the employer regards it prudent and advisable to temporarily remove the employee from the working environment in order to properly investigate the matter concerned. The employee therefore is able (and willing) to perform the work, but the employer elects to prohibit the employee from performing the work, while still remunerating the employee based on the employee’s availability to perform work.

How does the common law interact with statutory law and related contractual obligations?

By way of explanation, let us take the example of how paid leave originated and became embedded within conditions of employment:

At the point where there was only common law and no legal precedent or statutory law governing leave, the employee was simply not paid or rewarded for any period of absence or incapacity to perform work, such as illness. As the law developed over time, lawmakers and employers devised a remedy in order to sustain employment in times where it became difficult to perform work.

Although, over the years, other forms of paid leave found its way into the employment contract, some legislated (e.g. maternity leave and family responsibility leave) and some purely contractual (e.g. study leave or sport leave), the two most prominent forms of paid leave which evolved, improving on the common law principle of “no work – no pay”, are annual leave and sick leave.

Realising that, after working non-stop for approximately 12 months, the employee is bound to get tired and exhausted (which in turn impacts negatively on the employee’s health and performance), lawmakers and employers deemed it necessary to assist employees, for the greater good of the employee and the business, with conditional paid leave for resting and recovering purposes.

The common law however did not “disappear” from the equation with the advent of paid leave provisions but was simply “suppressed” or “hidden away” by the more advantageous benefit of paid leave provision.

A practical way of illustrating it, is to visualise painting certain layers of paint over a period of time on top of a piece of furniture’s original paint. The original paint representing the common law and the subsequent layers of paint, representing the positive and advantageous developments which, over time, improved on the common law situation. Should you later remove the layers, layer-by-layer, for whatever reason, you are bound to end up at the original layer of paint, in this analogy, the “common law”.

Applied to the paid leave analogy: Once the employee exhausted the paid annual and/or sick leave provision provided for in his/her contract of employment, the common law principle of “no work – no pay” eventually becomes applicable.

Exercising employment rights during lock-down

The world of work or employment was thrown in almost uncharted waters with this pandemic and one particular question often put to me by clients is: Can I be forced to put in annual leave when my employer closes down its operation temporarily as result of the pandemic?

The obvious answer to this question is: No – you cannot be forced to put in annual leave during such close down period. The provision of annual leave is an enabler, to come to the employee’s assistance when reporting for duty is not possible, due to being exhausted (not ill) and not being able to perform work at the required standard and diligence (thus being  in need of rest), or some ad hoc non-work related personal business demanding the employee’s absence from work.

Essentially, taking leave is a negotiable matter. The provision of paid leave is the employee’s statutory and contractual right, but the timing of taking this leave depends on the operational expediency of the business and is thus negotiable, bearing in mind that, while the employer may delay or postpone the taking of leave by the individual employee by staggering employees’ leave periods, the eventual taking of the leave cannot be refused.

Every one of us has a legal obligation to limit our damages or losses responsibly. To this end, and notably during the current lock-down, the employer may deem it appropriate to rather suspend operations and close down temporarily when business is at a particular low level or even non-existent. In so doing the employer is decreasing operational and infrastructure costs, which is a measure resorted to in order to limit possible damages.

Obviously, such decision has a profound impact on the employees, and we need to realise that both the employee and the employer are victims of the effects of the pandemic. In dealing with the impact on employees it is therefore not uncommon for the employer to suggest that the employee limit his/her damage by putting in annual leave (for those who have it to their disposal). While this suggestion may come across as an “instruction”, it remains a negotiable matter and cannot be forced.

Those employees who do not have paid leave left to put in, unfortunately, have to adhere to what the common law dictates, namely taking unpaid leave – no other choice. Those employees who have paid annual leave to their disposal, but for some reason do not want to put in annual leave, basically elect having unpaid leave covering their absence.

Some so-called “caring employers” may, out of their own volition, grant employees who are sent home during temporary closures ex gratia paid leave, partially or for the whole period of the closure. That is however not something employers are legally obliged to do.

Depending on the particular business requirements and circumstances, the employer may be forced to resort to more stringent measures to limit its damages or losses, such as lay off until operations can be resumed. In this regard the employee can however claim UIF benefits, in consequence of a special concession by UIF, for any such unpaid period.

Alternatively, in a worst case scenario where the pandemic has crippled the business to such an extent that keeping on the work force in some or other way is not feasible, retrenchments may follow, but not without the employer following due process as specified in the Labour Relations Act (LRA).

In closing

Let us get back now to the initial question regarding who should bear the brunt of the adverse effect the pandemic has on employer and employee. Against the above background the answer is that both the employer and the employee unfortunately have to bear the brunt, but preferably in a co-operative, negotiable and mutually supportive way.

While staying within the confines of the law governing employment practices and the manoeuvrability it provides for employers, coupled with a reasonable degree of flexibility allowed by the employee in the circumstances, it is conceivable that the adverse effect of the pandemic can be constructively managed and employment reasonably sustained.

Assistance in this regard is available by simply contacting the JJK ER/IR Consultancy at jjk.erir@mweb.co.za.

Author: J J (Koos) van der Merwe – Chartered HR Professional, registered with the SABPP  20