Friday, January 21

Guide for the second Christmas season of Covid-19


An employer has the right to stipulate that annual leave must be taken to coincide with the closing of the business during the December period. When employees have exhausted their annual leave during the course of the year, the December closing or “closing” period can be treated as unpaid leave.

Can an employer cancel the traditional “closed” December leave?

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This depends on company policy and the relevant contractual terms. Depending on the relevant facts, this may require the agreement of the employees. Additionally, employers should take into account any agreements related to the December “closure” that may have been implemented in 2020 when the closure was first implemented and assess whether those agreements extend through 2021.

Is an employer required to agree to cancel an employee’s annual vacation on the basis that their previously booked vacation was canceled due to Covid-19?

No. Unless specifically stated in terms of an employment contract, human resources policy, or collective agreement, an employer is not required to cancel an employee’s annual leave due to the cancellation of their previously booked vacation, whether related. with Covid-19 or otherwise.

How does an employer handle the potential abuse of sick leave during the holiday season?

Employers must ensure that sick leave is closely monitored and, where appropriate, that employees present the necessary medical certificates from registered physicians. Employers may also send a communication to employees before the holiday season reminding them that abuse of sick leave is a disciplinary offense and will be dealt with in terms of the employer’s code and disciplinary procedure. Presenting fraudulent medical certificates is also a crime. There is authority for the prosecution of employees who have relied on fraudulent medical certificates.

How does an employer manage company assets during the Christmas season, particularly company vehicles and IT equipment?

Any misuse of company property during the holiday season is misconduct in the ordinary course of time and may be dealt with in terms of an employer’s code and disciplinary procedure. Employers can take steps to ensure that company vehicles and the like are not misused, for example by tracking the kilometers on the vehicle. When a company asset is stolen, employees must be aware of their reporting obligations / protocols for the employer to comply with their own reporting obligation / protocol in terms of their insurance policy.

Is an employee entitled to unpaid vacation leave when they have exhausted their annual leave due to Covid-19 and national closures?

No. Law 75 of 1997 on the basic conditions of employment (BCEA) does not contain provisions that entitle an employee to leave without pay. Leave without pay is only mentioned 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. Leave without pay is generally a measure of last resort and should only be used in exceptional circumstances. An employee does not have the right to demand that they be assigned unpaid leave during the holiday season, although the employee may have exhausted their annual leave due to Covid-19 related reasons.

Notwithstanding the foregoing, and taking into account the implications for mental health and the difficulties faced by all employees as a result of the pandemic, it is advisable that when an employee wishes to take leave without pay that the employer seriously considers it.

A period of rest is important. During the year we have debated the subject of mental health. Employers, employees and unions must think outside the box to meet operational requirements to ensure that the workforce returning in 2022 can meet the challenges of the continuing pandemic and tough global economy.

Does an employer have the right to discipline an employee for failing to adhere to health and safety protocols during the holiday season, when the employee’s conduct is unrelated to or in the course and scope of their employment?

Unless the employer can demonstrate that the employee’s conduct has damaged the employment relationship in some way, the employer does not have the right to discipline the employee for conduct outside the workplace and not related to his work. A balance must be struck between an employer maintaining a safe work environment after the Christmas 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 the company’s farewell or year-end communications.

Can an employee be fired for being convicted of drunk driving, even if the employee was not on duty when the drunk driving incident occurred?

Yes, when the employee’s employment contract is terminated on the basis that the employee has committed a criminal offense, or when the employer can demonstrate that the employee’s illegal conduct has the potential to negatively affect the employment relationship.

Can an employer fire an employee for social media posts that have the potential to discredit the employer’s reputation?

This will depend on the employer’s social media policy and whether an employee can be said to have posted content on social media that violates the employer’s policy and / or has the potential to discredit the good name and reputation of the employer.

Employers are encouraged to review and update their social media policies to align with current best practices.

With the introduction of the Personal Information Protection Act 4 of 2013 (Popi), does an employer have the right to use content from an employee’s social media as grounds for dismissal?

This will depend on the employer’s social media policy. Employers should review their social media policy prior to the holiday season and ensure that the necessary consents have been obtained from POPI. In early 2022, employers should measure their POPI compliance against the benchmarks set in 2021.

Can an employee be fired for being drunk during work hours when the employee works from home and the employer is unable to take a breathalyzer test?

Yes. An employer’s policies should clearly state that there is a zero tolerance policy for drinking alcohol during work hours, and an employee can be fired for being intoxicated, even if the employee is working from home. Employers do not need to have a positive breathalyzer test. Intoxication can be determined on the basis of a balance of probabilities considering common indicators of intoxication or by observing behaviors such as slurred speech, incoherence, and the like.

Are employers allowed to host year-end functions for staff?

While it may not be recommended, an employer is legally allowed to host an end-of-the-year party for staff as long as the meeting regulations are followed. The current regulations on social gatherings are as follows:

  • All those present must wear a face mask, maintain a social distance of 1.5 meters and comply with all health and safety protocols; Y
  • the number of people in any place may not exceed 50% of the capacity of the place with people attached to 1.5 meters of social distance. A maximum limit of 750 people is allowed in connection with indoor gatherings or religious gatherings and a maximum number of 2000 people in connection with outdoor gatherings.

Employers may also consider hosting end-of-year functions for staff or team building events virtually via webinars.

Aadil Patel is director of our Labor Law practice at CDH.


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