Labour law in lockdown: Employers have limited options

Covid-19 has had devastating consequences on employers and employees alike, what does that mean for your employment?

What are employers legally entitled to do in relation to their employees in times where they are not able to generate income in their businesses?

Both the Labour Relations Act 66 of 1995, as amended (“LRA”), and the Basic Conditions of Employment Act, 75 of 1997, as amended (“BCEA”), apply to this situation.

There are only two outcomes for businesses as a result of the lockdown – either the employer is able to implement a remote working environment (which may lead to a reduction in productivity) or the employer will be forced to entirely cease income-earning activities.

Malherbe, Rigg and Ranwell (MRR) offers advice on the above.

Employers who continue (or reduce) business operationsIn most instances where a reduction in business operations occurs, there may very well be systems put in place by the employer to allow some, if not most, of its employees to work remotely – in other words, not from a central office location, but rather from the confines of each employee’s home.

These are the following options (among others) that employers and employees may utilise:

• Remote working: the employer may request employees continue to work from home, in which case the employer will not impose any form of leave. To the extent that working from home is for shorter hours, or fewer days, the below may also be of application.
• Annual leave: where the employer does not deem it necessary for a particular employee to work remotely, by agreement, the employee may take annual leave (which is paid).
• Unpaid leave: the employer may, where the employee refuses to take annual leave, or the employee’s annual leave has been fully exhausted, place the employee on unpaid leave temporarily, and provided that there exists reasonable justifications for placing the employee on unpaid leave.

• Short time: short time cannot be unilaterally imposed by an employer; however, an employer and an employee should consider lower pay for the employee being effectively able to work less hours. This may be catered for in the employment contract (or collective agreement as the case may be) and if not, it must be agreed to in writing between the employer and employee prior to implementation.

• Demotion (change of roles and responsibilities): the employer may, after following a proper process of engagement with the employee, demote the employee based on the reduced role and responsibility of the employee, and as a result the employer may similarly reduce the employee’s remuneration.
• Temporary lay-offs: in the event that the employer is required to shut down entirely and cannot afford to continue to pay employees’ salaries, then the employer may want to consider the temporary lay-off of employees, with certain time frames and restrictions being in place.

Visit www.mrr.co.za for more information.

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