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Johanette Rheeder Attorneys
Many employers close down for the holiday season and businesses shut down or work skeleton staff. This sometimes give rise to conflict as it is also the time when employees want to spent time with family, go on holiday or just break away after a stressful year at work. Others prefer to take leave during the year and do not want to take leave during the shutdown period. Some employees are however required to take their leave during this shutdown periods and some are required to work, as was the case in Seardel Group Trading (Pty) Ltd t/a Romatex Home Textiles v Petersen & others (2010) 19 LC 1.11.34, and also reported in [2011] 2 BLLR 194(LC).
In this case, most of the employer’s employees take their annual leave during the shutdown period. However, this is not the case for maintenance workers, as they have to perform maintenance work during the shutdown period while production is not ongoing. Those employees who do not take annual leave during the shutdown period can do so during other times of the year. The reason for the dismissal was that one employee, a maintenance fitter, refused to perform maintenance duties at his normal rate during the applicant‘s annual shutdown period in December and January. The employee was prepared to work at a higher rate, but not at his normal rate of pay. It was accepted that he worked during the shutdown in previous years.
The employer dismissed him for refusing to obey a lawful instruction. The dismissal became final after an internal appeal and the matter proceeded to arbitration. The commissioner found that work during the shutdown period was “illegal” in terms of the BCEA and the main agreement as the employer required the employee to work during an annual leave period, which is prohibited in terms of section 20(9) of the BCEA. On that basis, he found the dismissal to be substantively unfair and ordered the applicant to reinstate him retrospectively to the date of dismissal.
Section 20(9) of the BCEA provides: “An employer may not require or permit an employee to work for the employer during any period of annual leave”.
The main agreement repeats this section verbatim and is silent on the question of and relation between the annual shutdown and the time when employees may or should take annual leave and therefore did not take the matter any further. The employee’s contract of employment states that he is entitled to 20 working days’ annual leave after the completion of five years’ service. He had ten years’ service at the time of dismissal. The contract did not provide that annual leave must be taken at the time of the annual shutdown or that the two overlap and the employee could therefore, contractually, take leave any other time during the year as well.
On review, the Labour Court found that, in this case, the commissioner had misdirected himself in equating the applicant‘s annual shutdown period with the period of annual leave.
The Labour Court found that the prohibition on an employer requiring an employee to work during “any period of annual leave” contained in the BCEA and the main agreement is wholly irrelevant to the period of the applicant‘s annual shutdown. The evidence was that the employee customarily performed maintenance work during the annual shutdown period. In his evidence at arbitration he agreed with the statement by his trade union representative that it has been the norm that there is work for maintenance during the shutdown period.
The lesson to employers is clear. If you do have annual shutdown periods, make sure that your contracts of employment and collective agreements deal with this issue and regulate your requirements whether employees are required to work or not. If you want employees to take leave during December, write it into your employment contract with them. If you want them to work during shutdown periods, ensure that you agree with them to do so.
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In association with Gildenhuys Lessing Malatji Attorneys
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