There has been a lot of uncertainty around employers paying salaries during the #21daylockdownSA period. I spoke about this briefly on @Yfm with @KhutsoTheledi earlier this week and I've decided to compose a thread on my views:
it is important that we understand the nature of an employment relationship. It flows out of a contract, which contract sets out certain rights and obligations of both employer and employee.
Employees are hired to perform a specific task, which brings money to the employer's business, and in return, the employer pays a salary. There is a duty on both the employer and employee to perform.
There is also a general principle in labour law of "no work, no pay"; unless of course one is on paid or special leave. It goes without saying that the implementation of a lockdown will have a significant impact on the duty of employers and employees to perform.
In certain industries, employees will be able to work from home and business will not be impacted significantly. However, in a lot of industries, working remotely is difficult or impossible. This will mean that there is no business for the duration of the lockdown.
No business means no money flowing into the business. Contractually speaking, as an employee you are prevented from performing your obligations in terms of the employment contract as a result of the lockdown and no fault of your own. Similarly, so is the employer.
Accordingly, given both parties are not capable of performing, there is no obligation on either party to perform. As an employee you do not have to go to work, and as an employer you do not have to pay salaries because no one is fulfilling their contractual obligations to you.
Of course this is harsh and devastating to the livelihoods of employees so employers have been encouraged to find ways around this and to pay employees where they are able to do so. Unfortunately some businesses rely on the monthly income to pay salaries.
Government has set aside a temporary employee relief scheme to be accessed by employees who lose income as a result of the lockdown. Employees are required to apply for UIF and access this fund. However, businesses have been urged to pay employees and then claim compensation
from UIF as it may be easier for businesses to withstand the waiting period for all these anticipated claims being processed. In a perfect world everyone will receive their salaries for the duration of the lockout, however long it will be,and employers will simply claim from UIF.
We do not live in a perfect world so this will not be a smooth process at all. What is important though is that employers and employees work together in finding ways to alleviate the impact of the lockdown on peoples lives.
Some employers may propose that employees use up their annual leave days during this period as per the BCEA, whilst others may propose reduced salaries. There is a lot of legal uncertainty around this issue at the moment.
I do not believe one can provide definitive answers until this issue has been decided by a court of law post the lockdown period when affected employees take their employers to the appropriate dispute resolution forums.
I've been wondering what impact this will have on the admission of candidate attorneys should the lock-down period be extended and CAs find themselves away from work for more than 30 working days...
