Coronavirus and workers in South Africa: Know your rights and responsibilities

Dr Salomé Teuteberg

Coronavirus and workers in South Africa: Know your rights and responsibilities

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The spread of the coronavirus (COVID-19) and subsequent government reactions have both employees and employers uncertain.

Fin24 put out an article on the rights an employee has during this time. Here, we’ve summarised some of the key points:

Can you be dismissed because of the coronavirus?

Short answer: The employer needs to follow a process, including the employee in the decision before dismissal can be considered.

Long answer: In terms of Schedule 8: Code of Good Practice Dismissals, an employer must investigate the extent of the illness if the employee is temporarily unable to work. If the illness may result in a prolonged absence from work, alternatives to a dismissal must first be considered.

According to the experts, the factors to take into account in considering alternatives to dismissal include: the seriousness of the illness, the period of absence, the nature of the employee’s job and whether a temporary replacement may be secured. During this process, the ill employee should be allowed to make recommendations as well. Only once all these processes have been followed and no alternative to dismissal found, may an employer consider dismissal.

Can you be retrenched because of the coronavirus?

Short answer: if a large number of employees are affected, maybe.

Long answer: Section 189 of the Labour Relations Act 66 of 1995 applies if an employer contemplates dismissing one or more of its employees for reasons based on its operational requirements. A retrenchment is as a result of no fault on the part of the employee. In the circumstances, it is not an opportunity for an employer to terminate the employment of ill employees. However, should a large number of employees be infected, an operational need could possibly arise in future.

Can you refuse to go to work?

Short answer: No

Long answer: Employees remain obligated to go to work unless instructed otherwise by their employers. Employees who refuse to go to work must have a valid reason for their absence. The mere presence of the Coronavirus in South Africa does not constitute a valid reason to stay away from work.

Do you have the right to work from home?

Short answer: No

Long answer: Employees do not have a right to work from home. Working from home may be considered by employers but should not be implemented by employees without the employer’s consent. Employees are encouraged to rather speak to their employers about their concerns.

Can your employer restrict your personal or professional travel plans?

Short answer: Professional travel plans, yes. Personal travel plans, no.

Long answer: Professional travel plans may be changed or prohibited. However, an employer does not have the right to dictate whether an employee may travel during his/her annual leave or weekends. The employer may, however, require you to disclose any travel information.

What sick leave do I have?

The BCEA gives employees a “minimum of 21 consecutive days or 15 working days’ annual leave on full pay”. Annual leave is accumulative, meaning for every 17 days worked, one day of leave is granted, or for every 17 hours worked, one hour of leave is granted.

Sick leave is granted in a cycle of 36 months. Every cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. So if the employee works 5 days a week that means the employee is entitled to 30 sick leave days per 36-month cycle. There are some limitations to this, read more here.

What is my employer obliged to do?

The Occupational Health and Safety Act 85 of 1993 (“OHSA”) requires an employer to bring about and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees.

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