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Labour expert weighs into employee issues ahead of COVID19 lockdown

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Since it began claiming lives in January, the coronavirus has impacted the global economy. International markets have taken a dip and the sustainability of several companies- big and small- have been questioned.

This includes an already struggling South Africa, where citizens are preparing for Friday’s 21-day lockdown. The decision, President Cyril Ramaphosa said on Monday evening, was not taken lightly and was necessary to “flatten the curve” and stop the number of infected patients from increasing.

Concerns over job security after the lockdown have also been raised. To help answer some burning questions is labour law expert Shahied Abrader, who has a Masters in Labour Law, is a registered commissioner at the CCMA and is currently completing his PhD in Employee Relations.

Will our economy cope?

The predictions are that long after the dust has settled on the virus there’s going to be an economic issue that we’re going to face which is going to last for much longer. Already there’s a downturn globally. People will not be able to buy luxury items even after we contain this virus.  People are going to focus on getting their lives back together and get rid of debt.

This is going to carry on for the balance of this year. I think we’re going to have a lot of hardship in the country and around the world actually.

Who pays our salaries during the lockdown?

The president hasn’t clarified this. The nation’s employees seem to have understood that the employer has to pay the salaries of all the employees. This is not the case. One has to look at the agreement you have with employees,” he said.

This is the force majeure (or vis major – meaning “superior force”) in legal terms- it’s no fault of the employer and no fault of the employee. In that case, certain agreements will kick in. You’ve to go back to the employment contract to see what will be used to sort of soften the blow when it comes to salaries,”

Is taking paid leave an option?

A lot of companies are putting people on leave. if you look at the lockdown period, its 21 days but there are essentially 13 working days. The problem is, in South Africa, we like our holidays in December,” he said.

People are going to have to understand that they are going to now benefit by taking paid leave in December or go into negative leave. Some employers have even said, since its related to a virus, we can give people sick leave, especially those who haven’t abused their sick leave.

What about my money?

Abarder said that this is heavily reliant on the employee stimulus package to be announced by the department of labour.

There is currently legislation, so if employees have reduced working hours, the UIF can actually step in. You make that application directly with the UIF and Department of Labour. Your employer needs to complete certain documents and that is going to be difficult during a lockdown, so my advice is to get those documents done before Thursday. If they can virtually do that documents, set up a central office where employees can get that done then they have to do that,” he said.

Where does UIF come in?

If they have been contributing to the Unemployment Insurance Fund (UIF), I think about R18k is the cap on it so people can make use of that in terms of reduced working hours. Previously, the UIF was for employees who were terminated and unemployed, but the UIF  act has been amended.

One mustn’t always be too optimistic because you know how long things can take with the department of labour. People might have debt and might only get those payments long after the lockdown,” he said.

Can your boss force you to come work?

The president was very specific in terms of what types of businesses can work. Everyone else, needs to shut down. The first step that employers need to take is to check if employees can work from home. If they can, if their job is of such a nature that they can operate remotely, then the employer must take reasonable steps to make that possible.

If an employee feels that their lives or health is in danger, the Health and Safety Act in our country makes it easy. The communicable diseases act falls doesn’t fall under labour law but it’s very clear that when to health and safety.

It puts the obligation on the employer that make sure he or she, provides a safe working environment for any employee. Social distancing has specific requirements from my perspective that you need to about 1.5m between you and the next person but if you’re in a closed environment you don’t know if that’s going to keep you safe. Now, the law talks about disobeying a reasonable instruction or being insubordinate. He or she can refuse to work if he or she feels that.

Can my employer force me to take leave to make up for my salary?

You’re not supposed to be forcing employees to take leave but what is the alternative? The alternative is that employees go off without getting paid, which will have more economic hardship on them. There is no answer as far as how these employees must be treated.

I think between employee and employers need to find reasonable ways. I spoke to employers this week and some are saying we’ll give 60% of your salary and 40% of your leave. Others are saying 100% payment or 100% leave. There is no single answer or model to use in this case.”

What if I work at a call centre?

Social distancing applies in this case. It is a lockdown, I don’t know what employers and owners of businesses don’t understand. It is very clear, even call centres should be closed. We have a problem globally we cannot deal with,” he said.

Referencing Italy, Abarder said that the prime minster Giuseppe Conte came out and said that despite people being  locked in their homes and having the army is out on the street, people are still dying.

Our country and businesspeople need to take this seriously. Even if there wasn’t a lock down, people in call centres need to work shifts, split up, not all working in the building at the same time,” he noted.

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