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COVID-19: Work during the lockdown

Employment Law , , , ,

Since the start of the national lockdown in response to the spread of the Coronavirus, and in an effort to limit the occurrence of the COVID-19 illness it causes, the question of whether or not an employee in an essential service can be instructed to work during this time has persisted. This question has now been extended as some call centres and mines are permitted to operate after the announcement of the extended lockdown regulations and amendments by Minister Nkosazana Dlamini-Zuma on 16 April 2020.

The short answer is: Yes

If you are an employee, as defined by Section 213 of the Labour Relations Act (LRA) of an essential service provider (whether you are an essential service provider or work in a supportive role to an essential service provider) or of a company providing essential services as gazetted by government (including amendments) that is permitted to work during this time then an employer may require an employee to work.

Section 213 of the LRA defines an Employee as:

“(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and

(b) any other person who in any manner assists in carrying on or conducting the business of an employer, and “employed” and “employment” have meanings corresponding to that of ”employee.”

Further, the provision includes for the services provided by individual (ordinary citizen) employees during the lockdown that are essential to the operations of the essential service provider. Such employees may include, but are not limited to, support or administrative staff.

Caveat

Ordinary citizen employees, employed as support or administration staff, may well be in breach of their employment contracts if they refuse to work during this time, however as the national lockdown was declared in order to decrease the spread of an infectious disease in COVID-19, they may have a justifiable defence against disciplinary action taken for absence from work where no alternatives were considered.

An employee may, in terms of the Basic Condition of Employment Act, Section 20(10), request to take their annual leave if in accordance to the agreement between the employer and the employee. However, section 10 makes provision that both the employer and the employee must agree on when annual leave is taken and where there is no agreement the annual leave must be taken at a time that suits the employer. Legally, an employer may thus reasonably deny an annual leave application.

Conversely, should the employee refuse to report to work at an essential service provider during the lockdown for fear of contracting the COVID-19 illness, the employer may agree to grant the employee permission to be absent from work by requiring the employee to take annual leave during this time. Should an employee have no annual leave available, s/he may be permitted to take unpaid leave.

Health and Safety

The Occupational Health and Safety Act, No. 85 of 1993 requires every employer to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of their employees. It is not, however, the sole responsibility of the employer to ensure the health and safety of the working environment. Employees share this responsibility and any risks or dangers must pro-actively and in good faith be addressed through communication and cooperation between both parties.

This means that an employee has a duty to inform his or her employer of their COVID-19 status, as well as the risk of having been exposed to a COVID-19 positive person in order for the employer and the government to take the appropriate measures. An employer may obligate an employee to be tested for COVID-19, and under the regulations of the National Disaster Act, the employee can legally be forced to comply.

However, it is critical to keep in mind the regulations under the Disaster Management Act 2002, section 11(5), that it is a criminal offense to “publish a statement through any medium with the intention to deceive about COVID-19, anyone’s COVID-19 infection status …” The threshold for this offense is the ability to prove that the statement was made with “intention to deceive”.  A false claim by an employee to have been infected by COVID-19 in order to not report to work have yet to be tested under law but caries with it the risk to an employee of more than a disciplinary sanction.

Travel and Transport

The employer must provide every employee required to work during the lockdown with a permit to travel to and from work. Employees travelling to and from work must at all times carry this permit with them, along with photo ID. Employees who do not have this permit may refuse to travel to work.

Should an employee not have access to transport to be able to attend to work due to the prohibitions placed on public transport during the lockdown, the employer is responsible for making the necessary transport arrangements for the employees in accordance with the regulations stipulated for all forms of public transport.

 

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Probation Period & Poor work performance

Employment Law , , ,

Even though appointing new employees on the provision of a probation period or having a probation clause in their contract, has become standard practise in South Africa, much mystery and uncertainty still seems to surround the issue of what a probation period actually means in terms of  the rights of both the employee and employer. The main issue that lands employers at the CCMA is that they mistakenly believe that hiring an employee under a probationary contract or having a probationary clause in the employment contract allows the employer to dismiss an employee at the completion or during the probation period, without any regard to the obligations imposed under the Labour Relations Act, but more specifically the Code of Good Practice: Dismissal (more specifically paragraph 8 and 9).

The reasoning behind a probationary period is to provide the employer with an opportunity to evaluate whether a new appointee is suitable to the position to which s/he has been appointed based on the employee’s performance and ability to carry out the responsibilities as is required by the position. This means that the probation period is only applicable to evaluate the employees’ work performance ability. A probation period may not be used as an easy escape to dismiss a newly appointed employee because the manager does not like him or her or because they do not fit into the business culture.

The misconception regarding probation periods usually touches on this point, with many employers believing that when a probation period is close to its end, they may simply inform an employee that their performance is not satisfactory and end their employment. A termination based on this presumption will be deemed both procedurally and substantively unfair.

It is important to keep in mind that when an employer decides not to permanently employ a new employee after their probation period, such a termination of employment effectively constitutes a dismissal due to poor work performance. For a poor work performance dismissal to be both procedurally and substantively fair, such a decision must be supported by records proving that all requirements of the Code of Good Practice: Dismissal (referred to above)  was met in order to afford the employee a fair opportunity to meet such expectations. These include:

  • Records of all training/coaching provided, including on-the-job training and informal mentoring sessions
  • Minutes of meetings with the employee
  • Solutions to address mistakes and poor work performance
  • Reasonable deadlines given for the improvement of poor work performance
  • The result of the measures taken to resolve the identified poor work performance

The employer will also need to prove that the procedure leading to the termination of the employment contract included an investigation to determine the reasons for the poor work performance and that alternative to remedy the situation, short of dismissal, was considered and implemented to resolve the problem. This means that the performance of the new employee needs to be monitored and recorded from the first day.

It is therefore important to remember when appointing a new employee that a probation period or probationary clause in the contract is not seen as a “trial period” by an employer. It should be deemed as being the induction/training period of the employee, integrating them into the new business. Employers should therefore remember to monitor the employee’s performance from the start. Also, make it clear from the start what is expected of the employee and how they can achieve it. The employer has a duty to assist the employee where reasonably possible to achieve the standard which is expected of them and to ensure that its standards are indeed reasonable and achievable.

While probation can be very beneficial to an employer when recruiting and building his or her team, it must only be used for the intended purpose. It is advised to consult a labour law expert when drawing up policy regarding probation to:

  • Design probationary policy and procedure in line with labour law
  • Establish the measures for monitoring and evaluating work performance
  • Set realistic performance standards to measure progress
  • Train managers on probation law and the implementation of the policy and procedure.

Dismissal for Poor Work Performance (PWP) while Employee is on probation (in a nutshell)

During the probation period the Employer should assess the Employee’s performance. In order to assess it must be clear what is expected of the employee. If it is not clear what is expected of the Employee, he/she should be informed, preferably in writing what is expected of him/her.

The Employee should also be given reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render satisfactory service. It is advisable that the Employer keeps proof hereof. The Employee must also be given some time to have an opportunity to improve.

Should the Employer determine that the Employee’s performance is below standard, the Employer should advice the Employee of any aspects in which the Employer consider the Employee to be failing to meet the required standards. If the Employer believes that the Employee is incompetent, the Employer should advise the Employee of the respects in which he/she is not competent.

The Employer should also then allow the Employee to make representations (i.e. to respond, preferably in writing) to the allegations of incompetency that the Employer is making. After receiving the Employee’s representations, the Employer may then decide to either extend his probation period, or to dismiss. It is not necessary (while the Employee is on probation only) to hold a formal enquiry or “hearing”.

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COVID-19: Mandatory testing and a safe work environment

Employment Law , ,

With South Africa currently under a declaration of a National Disaster, some questions remain regarding the constitutionality of mandatory testing and a person’s right to refuse.

There are some who hold the view that being obligated to be tested is a violation of his or her constitutional right. However, under the National Disaster proclamation, certain limitations on constitutional rights are viewed to be both fair and just.

The Department of Co-operative Governance and Traditional Affairs published regulations determining that a person who is suspected to have Covid-19, or who has come into contact with someone who has Covid-19, may not refuse to be tested or quarantined. A warrant may be used to force compliance if a person refuses to be tested or quarantined.

In terms of workplace health, according to a document published by the Information Regulator of South Africa dated 03 April 2020, employers can force their workers to be tested for the SARS-CoV-2 virus behind Covid-19 illness.

In “GUIDANCE NOTE ON THE PROCESSING OF PERSONAL INFORMATION IN THE MANAGEMENT AND CONTAINMENT OF COVID-19 PANDEMIC IN TERMS OF THE PROTECTION OF PERSONAL INFORMATION ACT 4 OF 2013 (POPIA)” which focusses on the protection of personal information gathered for the purpose of containing the spread of COVID-19, a section deals with the question of consent and workplace obligation under Sections 6 and 7:

6.1 Can the employer request specific information on the health status of an employee in the context of COVID-19?

Yes, the employer is obliged to maintain a safe and hazardous free working environment in terms of the Occupation Health and Safety Act 85 of 1993 read together with the Employment Equity Act 55 of 1998, if an employee’s health status may endanger other employees. The disclosed information should not be used to unfairly discriminate against such an employee.

6.2. Can the employer force an employee to undergo testing for the COVID-19 virus?

Yes, the employer can force an employee to undergo testing in order to maintain a safe working environment.

  1. CONSENT

7.1. Can a data subject refuse to give consent to be tested for COVID-19?

No, the Regulations require any data subject to undergo mandatory testing in order to manage the spread of COVID-19.

Furthermore, section 8 addresses the mutual responsibility of an employee to maintain a safe working environment by disclosing their COVID-19 positive status to their employer:

  1. GENERAL

8.1. Does a person who has tested positive for COVID-19 have a duty to disclose his or her status?

Yes, a person who has tested positive has a duty to disclose his or status to enable the Government to take appropriate measures to combat the spread of COVID-19.

Thus, an employer may obligate an employee to be tested for COVID-19, and under the regulations of the National Disaster Act, the employee can legally be forced to comply.

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COVID-19 Updates in lockdown regulations 01 April 2020

Employment Law , , , ,

Minister of Transport, Fikile Mbalula, has issued a series of updates to the regulations in action during the national lockdown to facilitate better access to transport to vulnerable persons in response to citizens having difficulty finding transport to collect social grants.

According to government gazette 43183 (30Mar2020), “Busses and taxis shall be permitted to operate from 05h00 to 20h00 in order to cater the transport needs of South Africans most vulnerable which is effective from 30 March 2020 until 03 April 2020.”

A further amendment extends the period of validity for driver’s and vehicles for the period of the lockdown, and further 30 days grace period from the date of the end of the lockdown period. Motor Trade number licenses are extended a grace period of 6 months from the date of the end of the lockdown period. Licensing and vehicle test centres will remain closed for the lockdown.

The designation of essential workers have also been extended to include:

  • Tollgate operators
  • Road Emergency operators
  • Employees responsible for safe operation of the roads
  • Rail logistics operators

Government gazette 43186 (30Mar2020) grants a grace period to taxis to proceed to and from the pick-up points an hour before the designated times, without loading passengers, as set out in the Disaster Management act. Taxis are permitted to collect and return essential workers from 05h00 to 10h00 and 16h00 to 22h00. The amendment continues to say that private institutions or companies may plan transport for their essential workers (as listed in Annexure B of the Disaster Management act) to be in line with operating shifts and work time schedules. These operating shifts or work schedules must be stamped and signed by the responsible person.

This amendment also increases the permitted load capacity of minibus taxis to 70 % where no masks are required, meaning a taxi with a licensed capacity of 10 persons may carry 7, a capacity of 15 may carry 10 and a capacity of 22 may carry 15. In all cases the allowed number of persons in the vehicle includes the driver. A vehicle licensed for 4 persons is still limited to a 50 % permitted load capacity, meaning only 2 persons may be in the vehicle including the driver. However, during the lockdown period a minibus taxi will be permitted to carry a full load as licensed provided all persons in the vehicle is wearing either a surgical or N95 mask.

Government Gazette 43189 (30Mar2020) extends the ban on all local and international flights irrespective of the risk status of the country of origin except where granted specific permission by the Minister of Transport to evacuate South African citizens in foreign countries. Repatriation is allowed only where the foreign countries charter an aircraft to South Africa without passengers but with a crew – whom will not be allowed to disembark the plane in South Africa. South African citizens who wish to return to the country during this time will be permitted to do so provided:

  1. They have a fully paid return flight ticket, and
  2. They will submit to a mandatory quarantine period of up to 21 days.

The following technical flights are allowed:

  1. Medical Evacuation flights – these flights should not carry passengers except patients and crew who, upon disembarking, will be subject to the mandatory quarantine laws as are applicable.
  2. Aircraft in a state of emergency
  3. Overflights
  4. Technical landings for refuelling – these flights are allowed provided no passengers are allowed to disembark the plane.
  5. Aircraft operations related to humanitarian aid, relief flights and other safety related operations.

The following airports must have operation staff on standby to receive aircraft in distress:

  • Port Elizabeth
  • Bram Fisher
  • Upington
  • Polokwane
  • Kruger Mpumalanga

Flight Cargo crew will be permitted to disembark on the condition that they will be subject to quarantine laws as applicable.

Government Gazette 43183
Government Gazette 43186
Government Gazette 43189
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