The Employment and Labour Minister Thulas Nxesi recently reported that he has received numerous complaints that employers have been requesting that employees use annual leave as a first response to the COVID-19 lockdown.
In most employment contracts, the employer retains the discretion as to when to enforce a compulsory shut down period during the working year. That has usually been accepted to be during the December period for most businesses and in most industries. However, the enforced shutdown can take place at any time and at the discretion of the employer. Requesting employees to use annual leave for a portion or some of the period of the lockdown is therefore legal. The Minister’s plea is that the financial repercussions and harms not be shifted to the employees if possible.
Annual leave should be distinguished from unpaid leave. Unpaid leave would usually be granted to an employee when all other types of leave have been exhausted, say for instance if the employee requests additional leave once annual leave, for example, has been exhausted and the employer grants that leave. That leave would be unpaid. Or if an employee has exhausted all his sick leave within the 3-year cycle, any additional sick leave could well be granted as unpaid leave.
However, this period of COVID-19 lockdown related to the National Disaster Management Act 57 of 2002 does not lend itself to the granting of unpaid leave.
Minister Thulas Nxesi has appealed both to employers and employees (but mostly to the employers) to use the R80-billion National Disaster Benefit Fund which is available to pay UIF benefits that help mitigate the impact of laying off workers during this pandemic or drive them into further financial constraints and poverty.
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