While a number of essential workers continue to operate during South Africa’s coronavirus lockdown, those who are not in essential services and cannot work remotely, face the ‘no work, no pay principle’, says Leila De Saude (Associate) and Melissa Cogger (Senior Associate) at law firm Bowmans.
In an effort to mitigate the effect of the no-work-no-pay principle, some employers have continued to pay their employees’ salaries, or a portion thereof, or are requiring employees to take their annual leave.
This raises questions around the accrual of annual leave and whether it will be impacted if you are not working.
“In relation to employees in essential services and those who are working remotely, the answer is simple: yes, they continue to accrue leave,” Bowmans said.
However, it noted that the issue is somewhat more complex in respect of employees who are not able to work during this time.
“The Basic Conditions of Employment Act (BCEA) provides that an employee is entitled to a minimum of 21 consecutive days’ paid annual leave (about 15 working days) in respect of each annual leave cycle, being a period of 12 months’ employment with the same employer.
“If an employee’s employment contract entitles them to a specified number of days’ leave per annual leave cycle, the employee accrues annual leave irrespective of whether they work or are entitled to be paid. Thus, annual leave would accrue during a period of unpaid maternity leave or paid sick leave.”
Bowmans said that in these circumstances, the employee would accordingly continue to accrue annual leave during the lockdown, even though they did not work and were not paid.
However, it noted that in terms of the BCEA an employer and an employee may agree an alternative method of determining the annual leave entitlement – namely, one day’s leave for every 17 days worked or for which the employee was entitled to be paid, or one hour’s leave for every 17 hours worked or for which the employee was entitled to be paid.
“Thus, if the employment contract regulates the employee’s annual leave entitlement in terms of this formula, the employee would not accrue annual leave during the lockdown,” it said.
“In the event that employees and employers agree to a reduction of working hours together with a correlating reduction in pay during, or after, the lockdown period, employers should also consider the treatment of annual leave.
“The parties could potentially reduce the employee’s annual leave entitlement proportionately to the reduction in hours worked (but not below the BCEA threshold), or they could agree that the annual leave entitlement shall remain unchanged.”