Nxesi: Companies can’t force you to take annual leave; nonessential working is illegal

Labour Minister Thulas Nxesi said on Tuesday that companies should not force employees to take their annual leave.

“They must try to negotiate,” he said. “Companies cannot force employees to take annual leave.”

Nxesi was speaking during Tuesday’s interministerial committee media briefing in Pretoria on government’s progress during the lockdown.

In an official statement, he said the department had received concerns from workers and unions that some employers were seeking to shift the burden of the lockdown on to their workers, “using their annual leave as the first line of response to the lockdown”.

“We are also getting complaints from workers that their employers have instructed them to take unpaid leave during this lockdown. We do understand that in terms of the leave determination, employers can compel employees to take leave at any time as they deem fit. However, this is a unique situation, that requires all of us to act in a manner that promotes social solidarity.”

Labour Minister Thulas Nxesi says 7000 direct claims from individuals for UIF are being redirected back to employers to make claims. Important: He says companies cannot force workers to take the lockdown as annual leave. #SouthAfricaLockdown

— Ferial Haffajee (@ferialhaffajee) March 31, 2020

The statement has been interpreted as confusing, since the directive in the statement that “employers can compel employees to take leave at any time as they deem fit” still creates the impression that a company’s decision trumps that of the employee’s.

The public has already called for a clearer statement on the matter to be issued.

Thulas Nxesi expresses concern that some employers have forced their workers to take annual leave and/or unpaid leave but gives no directive on what must happen and what these employers must do to rectify this. 🤷🏾‍♂️

— Sentletse 🇷🇺🇿🇦🇵🇸 (@Sentletse) March 31, 2020

Further, Nxesi said: “It appears that some employers who are not delivering essential services and goods are forcing their employees to work.  Employers are either unaware or choose to ignore the provisions of the National Disaster legislation and regulations which only provide for essential services and production to continue at this time.

“In terms of Regulation 11G, this is a criminal offence and puts at risk not only those employees, but all who they are in contact with and goes against the call for as many of us as possible to ‘stay at home’. Any employee who is not involved in a business delivering essential services and goods and who is forced to work is entitled to contact the SAPS and report it.”

Although he did not specifically make the distinction, he appeared to be referring to people having to work in their workplaces, and not people who can do their work from home.

If employees who reported their employers were subsequently victimised, Nxesi said they would be protected under the Labour Relations Act since their dismissal would be unfair labour practice and action would, therefore, be taken against their employer.

“I further call on employers to intensify their communication to employees informing them of their responsibilities during this period.”

Thulas Nxesi is useless and that dept of his @deptoflabour is equally useless. They need to give a directive now to stop companies from forcing employees to take annual leave during this period.

— Unapologetic (@2ndChancesVibes) March 31, 2020

Additionally, those who counted as essential staff and therefore had to work were entitled to protective equipment supplied by their employers as part of the Occupational Health and Safety Act.

The department’s inspectors have been deployed in Gauteng, the Western Cape and KwaZulu-Natal to monitor the situation on this front and were being accompanied by the South African Police Service and officials from the department of trade and industry.

“The reason for the latter is that there is evidence of some employers having obtained fraudulent certificates declaring that they can continue to operate as essential services.”

He urged employers to do the right thing going forward and threatened that if the situation persisted, the department would be forced to name and shame employers who did not comply.

He said they had been dealing with some resistance from some employers on UIF funds.

“These are public funds and they must be ordered,” said Nxesi. The UIF could not deal with millions of individual claims and needed companies to submit claims on behalf of their staff.

“March salaries should have been paid,” he added.

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