MYTHS IN RESPECT OF EMPLOYMENT LAW AND COVID-19
MYTH 1: Due to the COVID-19 pandemic, an employer is permitted to simply terminate a contract of employment because the employer has less work.
FACT: Employers cannot simply terminate contracts of employment without following a due process and having a substantively fair reason for the dismissal recognised in terms of the Labour Relations Act. However, the reduction in a company’s turnover and profits because of the COVID-19 pandemic may constitute a fair basis for a retrenchment, provided the correct process is followed.
MYTH 2: If an employee demands to work from home or does not come to work, the employer cannot force the employee to return to work.
FACT: In terms of the COVID-19 Regulations pertaining to Level -3, employees must work from home where possible. However, if it is not possible to work from home, employers can insist employees must return to work.
Employers must however ensure that the prescribed safety protocols are in place (including taking any comorbidity into consideration) and be cognisant of the fact that the death of a staff member resulting from COVID-19 may have far reaching consequences, especially if that staff member had to return to work against his/her wishes.
In terms of the COVID-19 Regulations issued by the Department of Labour, an employee may also refuse to perform any work if circumstances arise, which with reasonable justification appear to that employee or to a health and safety representative to pose an imminent and serious risk of exposure to COVID-19.
MYTH 3: COVID-19 makes it easier for employers to terminate an employment contract during the probationary period.
FACT: During the probationary period, an employer has a less onerous standard to comply with when dismissing an employee based on poor work performance. However, a fair process still needs to be followed. Moreover, the requirements for a fair dismissal based on misconduct, ill-health or the employer’s operational requirements are unaffected by the probationary period.
MYTH 4: If an employee does not work because he/she cannot work due to the COVID-19 regulations or the employee’s COVID-19 policies, the employee still needs to be paid his/her full salary.
FACT: If an employee cannot work during the COVID-19 lockdown the principle of no work, no pay applies. The employee is eligible for benefits from either the UIF Fund itself for reduced working time and/or COVID-19 TERS benefit (until end of June 2020 according to the latest Ministerial announcement). However, actual receipt of said benefits can practically be challenging.
MYTH 5: Since it is difficult to prove where an employee contracted a COVID-19 infection, COVID-19 cannot be viewed as a work-related injury.
FACT: The Regulations issued by the Department of Labour on 03 June 2020 explicitly allow an employee to claim compensation in terms of the Occupational Injuries and Diseases Act if there is evidence that an employee contracted COVID-19 arising in the course of employment.
MYTH 6: Employers can unilaterally reduce an employee’s salary due to COVID-19.
FACT: Generally, the following two principles govern salary reductions: Firstly, salary reductions are only permissible if an agreement can be reached between an employee and an employer. Secondly, if an employee cannot work, because the employer is prohibited from operating by public regulation, no salary needs to be paid. In the latter instance, the employee should have a claim against the UIF.
MYTH 7: An employee who believes to have contracted COVID-19 must stay at home for 14 days (self-isolation) and the employer must pay the full salary.
FACT: The first question in this regard relates to whether or not the employee is working from home or not. If the employee is working from home whilst self-isolating, the employer must pay the full salary. If the employee is not working from home, the next question relates to the reason why. If the employee is experiencing symptoms and cannot work as a result of these symptoms, he/she must be placed on sick leave (and paid) or must be placed on UIF benefits if the her/his sick leave has been used up. In addition, within this context there is some uncertainty whether or not the employee can be placed on UIF if his sick leave is not used up. Alternatively, if the employee cannot work from home, not because the employee is experiencing symptoms, but because the employee’s work cannot be performed remotely, the no work, no pay principle applies.
MYTH 8: Employees who receive commission are entitled to higher basic salaries because COVID-19 has impacted their ability to make sales.
FACT: The salary structure is determined by agreement in the employment contract. The fact that an employee cannot achieve the same sales as he/she ordinarily does, does not entitled the employee to a higher base salary. The employee is however at liberty to attempt to renegotiate his remuneration structure with his employer.
MYTH 9: Employees who refuse to comply with COVID-19 safety precautions cannot be dismissed.
FACT: If an employee fails to comply with the COVID-19 safety precautions and safety protocols he/she is committing serious misconduct and can be terminated. Principles of substantive and procedural fairness apply.
MYTH 10: If an employee’s work allows the employee to work from home, but the only reason he cannot work from home is a lack of infrastructure, such as an internet connection and a laptop, the employer must provide such infrastructure to the employee in order for the employee to be able to work from home.
FACT: The employer cannot be forced to provide the working equipment for working from home. An employee who is thus unable to work from home due to a lack of infrastructure must be treated as an employee whose work does not entitle him to work from home.