Much confusion has been caused by some remarks, made by officials of the Department of Employment and Labour, surrounding the question of whether employers may require employees to take their annual leave during the national lockdown.
South Africa’s sources of law are the common law, acts of parliament, secondary legislation and case law. Speeches, press releases and statements do not create laws.
Section 20(10) of the Basic Conditions of Employment Act (BCEA) states that:
Annual leave must be taken:
(a) in accordance with an agreement between the employer and employee; or
(b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section.
Therefore, annual leave must be taken by agreement between the employer and employee, and failing such an agreement, at the employer's discretion. The current Covid-19 lockdown is no different to an annual shutdown in December.
Therefore, until one of the legitimate sources of law is amended, employers can require their employees to take their annual leave now, during this lockdown, and be paid.
Employers who have an annual shutdown in December may even, if practical, exchange this lockdown closure for the December shutdown and require employees to work during December.
The other alternative available to employers, who cannot place employees on leave or continue paying them, is to lay them off temporarily as a result of the lockdown and to claim UIF benefits for the employees in terms of the expanded COVID 19-TERS benefit. Click here to view our newsletter in this regard.