Most Recent Publications

 

COVID-19 versus the Common Law: States of Disaster won’t jettison an employer’s contractual obligations

By Hedda Schensema, Director and Abigail ButcherAssociate, Employment Law, Cliffe Dekker Hofmeyr

 

In 2020, the Labour Court handed down judgment in the matter of MacSteel vs. NUMSA, which held that a company could apply the no-work-no-pay principle to employees who did not or could not work during periods of ‘hard lockdown’ due to COVID-19. 

 

As per Judge Prinsloo:

”The reality in law is that the employees who rendered no service, albeit to no fault of their own or due to circumstances outside their employer’s control, like the global COVID-19 pandemic and national state of disaster, are not entitled to remuneration and the Applicant could have implemented the principle of ‘no work no pay’.”

 

However, on 25 January 2022, the Cape Town Labour Court handed down judgment in Buys vs Oasis Group Holdings, holding that Judge Prinsloo’s comments in MacSteel v NUMSA constituted obiter, and that an employer cannot avoid its contractual obligations notwithstanding COVID-19, and its associated lockdowns.

 

In the case of Buys vs Oasis Group Holdings, the applicant in the matter brought a claim for specific performance of the notice clause in his contract of employment. On 1 January 2020 Buys (Applicant) who was employed by Oasis Group Holdings as a Senior Fiduciary Specialist, had resigned. In terms of his contract of employment, he was required to give six calendar months’ notice, and at no stage did Oasis Group Holdings waive the notice period.

 

Owing to the COVID-19 pandemic, South Africa went into a ‘hard lockdown’ in March 2020, and the Applicant was placed on unpaid leave from 1 April 2020, which formed part of his notice period, as he had been identified as a non-essential employee. 

 

The Applicant’s submission in support of his position that the three remaining months of his notice period should be paid to him notwithstanding the hard lockdown, was that where an employer does not require an employee to work during his/her notice period, the employer is obliged to pay the employee in lieu of such period. In addition, the principle of no-work-no-pay is only applicable during the period of the employee’s employment and finds no application to an employee serving his notice period. To this end, counsel on behalf of the Applicant referred to the matter of Mohsen & another vs. Brand Kitchen Hospitality (Pty) Ltd & Another:

 

“It is trite that the duty to pay, and the commensurate right to remuneration, arises not from the actual performance of work, but from the tendering of service.”

 

In evaluating the evidence before him, Judge Rabkin-Naicker found that the above-mentioned paragraph referenced from the MacSteel judgment is obiter and cannot form part of the ratio of the judgment.  Judge Rabkin-Naicker’s rationale was that should this be the case, then the common law on impossibility of performance would be undermined as well as the reciprocal relations between employer and employee regarding the obligation to tender performance in return for remuneration. She accordingly found Oasis Group Holdings in breach of the contract of employment and ordered payment of the Applicant’s remuneration for the balance of his notice period, up to date of his referral to the CCMA.

 

This judgment potentially throws caution to the wind regarding the manner in which companies deal with employees during hard lockdown periods, which based on the multiple ‘waves’ experienced by the country and the continued national state of disaster, may be implemented once again. Companies should be cautious to place employees on unpaid leave in situations where performance is necessary and possible, and the employee has tendered services. In addition, companies should avoid ‘blanket’ decreases to salaries for both employees continuing to work full time and those placed on leave, as an employee who tenders full service would be entitled to full remuneration.

 

For more information please contact Hedda Schensema at [email protected] or Abigail Butcher at [email protected]

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

 

By submitting your email address to us, you agree to receive our newsletters and course updates. For more information about how we protect your personal information, click here .

Accredited Training Provider

     

Courses and Workshops

 

 

May

Management and Leadership Skills

25, 26 & 27 May 2022 (08:30 - 16:00)

Interactive Online Course (Postponed)

The Formulation of Disciplinary Charges New Course

27 May 2022 (09:00 - 13:00)

Emperors Palace: Convention Centre

Managing COVID-19 in the Workplace New Course

27 May 2022 (08:30 - 16:00)

Interactive Online Course 

 

June

New Code of Good Practice: Harassment in the Workplace New Course

03 June 2022 (09:00 - 12:00) (Fully Booked)

Emperors Palace: Convention Centre (Click here for new dates)

09 June 2022 (09:00 - 12:00)

Interactive Online Course

Employment Equity Committee Training

10 June 2022 (09:00 - 16:00)

Emperors Palace: Convention Centre

Managing Poor Performance/ Incapacity

23 June 2022 (09:00 - 12:00)

Interactive Online Course

The Formulation of Disciplinary Charges New Course

24 June 2022 (09:00 - 13:00)

Interactive Online Course

Strategic Human Resources Management (HRM) and - Business Partnering

01, 02 & 03 June 2022 (08:30 - 16:00)

Interactive Online Course

22, 23 & 24 June 2022 (08:30 - 16:00)

Emperors Palace: Convention Centre

Compensation for Occupational Injuries and Diseases Course

23 June 2022 (08:30 - 16:00)

Interactive Online Course

The Basic Conditions of Employment Act and Related Workplace Policies New Course

30 June 2022 (08:30 - 12:30)

Interactive Online Course

 

July 

Employment Equity Committee Training

01 July 2022 (09:00 - 16:00)

Interactive Online Course

Workplace Discipline and Dismissal

07 July 2022 (09:00 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

14 July 2022 (08:30 - 16:00)

Interactive Online Course

21 July 2022 (08:30 - 16:00)

Emperors Palace Convention Centre

Basic Labour Relations

15 July 2022 (09:00 - 16:00)

Interactive Online Course

New Code of Good Practice: Harassment in the Workplace New Course

15 July 2022 (09:00 - 12:00)

Emperors Palace: Convention Centre

Workshop Chairing Disciplinary Hearings

21 & 22 July 2022 (09:00 - 16:00)

Interactive Online Course

The OHS Act and the Responsibilities of Management

28 July 2022 (08:30 - 16:00)

Interactive Online Course

Managing day-to-day challenges in the workplace

28 July 2022 (09:00 - 15:30)

Interactive Online Course

 

August

Trade Unions in the Workplace

05 August 2022 (09:00 - 12:00)

Interactive Online Course

How to win an unfair dismissal case at the CCMA / Bargaining Council

25 August 2022 (09:00 - 16:00)

Interactive Online Course

 

Our Clients 

 

Download the Labour Guide Apps

Android App On Google Play

Android App On Google Play