LEAVE PROVISION AND ALTERNATIVES DURING LOCKDOWN

MISA is aware of a number of employers who have sent out communications to their employees placing them, by default, on Annual Leave or Unpaid Leave during the national lockdown period.

THE BCEA TAKES PRECEDENT

In the absence of a signed and enforceable MIBCO Main Collective Agreement, the Basic Conditions of Employment Act (BCEA) takes precedent.

One of the provisions of the BCEA is that annual leave can be taken when an employer and employee agree on the time/period of leave. Such an agreement is normally reached through the employer’s internal leave application processes.

The BCEA further provides that when there is no agreement reached between an employer and employee on the specific time of the leave, the annual leave must be taken at a time determined by the employer.

THE DEPARTMENT OF LABOUR’S PLEA TO EMPLOYERS

The Department of Labour’s Chief Director: Labour Relations, Thembinkosi Mkalipi, at the end of March issued a directive encouraging employers “…not to request employees to utilise their annual leave credits for the lockdown, but to rather utilise the financial assistance that the department has placed at their disposal through the COVID-19 Temporary Employer/Employee Relief Scheme (TERS) in cases where companies cannot afford to pay employees…” Read more here: http://www.labour.gov.za/directive-on-covid-19-implications-on-bcea-leave-provision

The Department of Labour has also pleaded with employers to claim UIF from TERS on behalf of their employees.

The COVID 19 pandemic that led to the National Lockdown is a “no-fault” to both employer and employee and, as a result, special financial assistance is available to employers, as was communicated in the MISA eDATA of 14 April 2020 (Read it here: https://bit.ly/edata14april2020)

MISA RECOMMENDS THAT YOU CONSIDER TAKING ANNUAL LEAVE

MISA recommends that you consider taking annual leave when offered, purely as this will be more beneficial to you.

WHY IS THIS MORE BENEFICIAL TO YOU?

Annual leave is paid on a full basic salary, while the TERS pay-out will be on a sliding scale between 38% and 60% of your basic salary. Bear in mind that in terms of the Unemployment Insurance Fund Act, the basic salary threshold is R17 712. The reality is that the maximum pay-out per month, when earning above the threshold amount, is R6 730.

Paid leave does seem to be more beneficial during the national lockdown period.

Having said that, please bear in mind that an employer is not at liberty to force an employee to take “unpaid leave”. The BCEA provides that an employee may request, in writing, to take “unpaid leave”. However, this does not apply during a period of “no work no pay”. The correct term to use if you are not paid during the national lockdown is therefore not “unpaid leave”, but “temporary layoff”, which qualifies you for compensation from TERS.

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