In a time when information is key, the headlines have been contradictory when regarding employers requiring their employees to take annual leave.
A very misleading headline appeared on 31 March 2020 which read: “Employers cannot force workers to take annual leave during lockdown – Labour Minister”.
What is misleading is that the article itself speaks of the government imploring employers to utilise the funding mechanisms it has put in place, rather than placing the financial burden onto their respective employees with the implementation of unpaid leave.
In order to ensure that employees and employers alike are informed as to the legal position relating to the taking of annual leave, it is necessary to go back to basics and analyse the Basic Conditions of Employment Act, which has not been amended during this period.
Simply put, the Basic Conditions of Employment Act (BCEA) sets out the provisions relating to employees taking annual leave. Section 20 (10) of the BCEA sets out the following:
“Annual leave must be taken—
- in accordance with an agreement between the employer and employee; or
- if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section.”
The fact that many businesses are not in a position to work as normal creates a situation which is directly linked to the businesses’ operational requirements. Based on section 20(10) of the BCEA, the company may consider the operational requirements of the business during this time and place non-productive employees on annual leave.
What the Government is asking of employers is not to penalise employees and in doing so shift the financial burden of unpaid leave onto their respective employees. What should rather happen is that affected employers utilise the funding mechanisms in order to obtain benefits on behalf of their employees.
However, the real situation is that there is a time delay between the application for Covid-19 TERS scheme funding and the payment of this benefit. The Government has recognised this delay and has amended the Directive establishing the Covid-19 TERS scheme. The direction issued on 8 April 2020, now allows that:
“An employer who has required an employee to take annual leave during the period of the lockdown in terms of section 22(1)(b) of the Basic Conditions of Employment Act, 75 of 1997, may set off any amount received from the UIF in respect of that employee’s Covid-19 benefit against the amount paid to the employee in respect of annual leave provided that the employee is credited with the proportionate entitlement to annual leave in the future.
To speed payment of Covid-19 benefits to employees, employers are urged to pay employees based on clause 3.4 of the Directive and reimburse or set off such with Covid 19 benefits claim payments from UIF”
It would appear that the incorrect section has been quoted in the directive as it should read section 20(10)(b), as this section deals with leave.
The conclusion to be drawn from the BCEA and the updated Directives that have been issued is that yes, it is permissible to place employees on annual leave during this period.
Tracey Mouton is a director at Goldberg & de Villiers Inc, heading up their Human Resources and Labour Law division. Email traceym@goldlaw.co.za.