With many South Africans knocking off in the next two weeks for a festive break, the experts at commercial law firm Cliffe Dekker Hofmeyr have answered some pertinent questions for employers and staff alike ahead of our (unfortunate) second Covid-19 holiday season.
Can employees be forced to take their annual leave over December?
An employer is entitled to stipulate that annual leave must be taken to coincide with company closures over the December period. Where employees have exhausted their annual leave during the course of the year, the December closure or “shut down” period may be treated as unpaid leave.
Can an employer cancel the traditional December leave “shut down”?
This is dependent on company policy and any relevant contractual terms. Dependent on the relevant facts this may require the employees’ agreement. Also, employers should have regard to any agreements relating to December “shut down” which may have been put in place in 2020 when the lockdown was first implemented and assess whether those agreements extend to 2021.
Is an employer obliged to agree to cancel an employee’s annual leave on the basis that their pre-booked holiday has been cancelled due to Covid-19?
No. Unless specifically stated in terms of a contract of employment, HR policy or collective agreement, an employer is not obliged to cancel an employee’s annual leave owing to the cancellation of their pre-booked holiday, whether related to Covid-19 or otherwise.
How does an employer manage potential abuse of sick leave over the holiday season?
Employers should ensure that sick leave is closely monitored and where applicable, that employees produce the requisite medical certificates from registered medical practitioners. Employers may also wish to send out a communication to employees ahead of the holiday season reminding employees that abuse of sick leave is a disciplinary offence and will be dealt with in terms of the employers’ disciplinary code and procedure. The production of fraudulent medical certificates is also a criminal offence. There is authority for the prosecution of employees who have relied upon fraudulent medical certificates.
How does an employer manage company assets over the holiday season, particularly company vehicles and IT equipment?
Any misuse of company property over the festive season is misconduct in the ordinary course and may be dealt with in terms of an employer’s disciplinary code and procedure. Employers may put measures in place to ensure that company vehicles and the like are not being misused by e.g. tracking the kilometres on the vehicle. Where theft of a company asset occurs, employees should be aware of their reporting obligations/protocols so that the employer is compliant with its own reporting obligation/protocol in terms of its insurance policy.
Is an employee entitled to unpaid leave for holiday purposes where they have exhausted their annual leave due to Covid-19 and national lockdowns?
No. There are no provisions contained in the Basic Conditions of Employment Act 75 of 1997 (BCEA) which entitle an employee to unpaid leave. Unpaid leave is only referred to in the BCEA with reference to what an employer is entitled to do when an employee’s sick leave or annual leave has been exhausted. Unpaid leave is generally a measure of last resort and is only to be used in exceptional circumstances. An employee is not entitled to demand to be placed on unpaid leave during the holiday season, albeit that the employee may have exhausted their annual leave owing to reasons related to Covid-19.
Notwithstanding the above and having regard to the mental health implications and the difficulties faced by all employees arising from the pandemic, it is advisable that where an employee wishes to take unpaid leave that an employer seriously consider this.
A period of rest is important. We have over the year discussed the issue of mental health. Employers, employees and trade unions should think out the box to meet operational requirements to ensure that the workforce which returns in 2022 is able to meet the challenges of the continued pandemic and difficult global economy.
Is an employer entitled to discipline an employee for failure to adhere to health and safety protocols during the holiday season, where the conduct of the employee is not related to or in the course and scope of their employment?
Unless the employer can show that the conduct of the employee has damaged the employment relationship in some way, the employer is not entitled to discipline the employee for their conduct outside of the workplace and unrelated to their work. A balance must be struck between an employer maintaining a safe working environment post the holiday season and an invasion of an employee’s privacy.
Employers can only encourage employees to adhere to government protocols outside of the workplace. This should be strongly reiterated in farewell or year-end company communications.
Can an employee be dismissed for being found guilty of drunken driving, even if the employee was not on duty when the incident of drunken driving took place?
Yes, where the employee’s contract of employment is terminable on the basis of the employee having committed a criminal offence, or where the employer can show that the unlawful conduct of the employee has the potential to negatively impact the employment relationship.
May an employer dismiss an employee for social media posts which have the potential to bring the employer’s reputation into disrepute?
This will depend on the employer’s social media policy and whether an employee can be said to have posted social media content that is in contravention with the employer’s policy and/or has the potential to bring the good name and reputation of the employer into disrepute.
Employers are encouraged to review and update their social media policies to align with current best practice.
With the introduction of the Protection of Personal Information Act 4 of 2013 (POPI), is an employer entitled to use an employee’s social media content as a ground for dismissal?
This will depend on the employer’s social media policy. Employers should review their social media policy ahead of the festive season and ensure that the necessary POPI consents have been obtained. In early 2022, employers should measure their POPI compliance against the benchmarks set in 2021.
Can an employee be dismissed for being drunk during working hours where the employee is working from home and the employer is unable to perform a breathalyzer test?
Yes. An employer’s policies must clearly state that there is a zero-tolerance drinking policy during working hours, and an employee may be dismissed for being intoxicated, albeit that the employee is working from home. Employers need not have a positive breathalyser test. Intoxication may be determined on a balance of probabilities taking into account common indicators of intoxication or by way of the observation of conduct such as slurred speech, incoherence and the like.
Are employers permitted to host staff year end functions?
While it may not be recommended, an employer is legally permitted to host a staff year end party provided that the regulations pertaining to gatherings are adhered to. The current regulations pertaining to gatherings are as follows:
- all persons in attendance must wear a face mask, maintain social distancing of 1,5 meters and adhere to all health and safety protocols; and
- the number of persons in any venue may not exceed 50% of the venue capacity with persons adhering to 1,5 meters social distancing. A maximum limit of 750 persons are allowed in relation to indoor gatherings or faith-based gatherings and a maximum number of 2000 persons are allowed in relation to outdoor gatherings.
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