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15 Feb 2021 – CAN EMPLOYERS FORCE EMPLOYEES TO TAKE LEAVE?
The Lockdown laws have made it compulsory for many employers to send their employees home without work, and often without pay. In some cases employers try to ameliorate this by requiring these employees to take paid annual during the Lockdown period.
Section 20(10) of the BCEA says that, if there is no agreement on the timing of the leave, the employer determines the time when the leave is to be taken. Many employees interpret sec 20(10) to apply only in a case where the employee has applied for leave and the employer is responding thereto. The BCEA is not clear on this and case law in this regard is scant. In Jansen van Vuuren v South African Airways (Pty) Ltd and another [2013] 10 BLLR 1004 (LC) a flight captain reached the official retirement age. He was instructed to remain at home pending his possible recall to flying duty, and his salary was supplemented by deducting from the accumulated leave owing to him.
The Labour Court interpreted part of the employee’s dispute as one of being forced to take annual leave, and found this to be an unfair labour practice. For this portion of the dispute the Court ordered the employer to pay damages for the period of the leave he had been forced take.
Would the Court have found differently if the reason for the forced lave was the Lockdown legislation?INGRID LEWIN – FORCED TAKING OF LEAVE
The directive regarding the Covid 19 TERS scheme sets out the following as its purpose:
“2.1 To make provision for the –
(a) Payment of benefits to workers who have lost income or have been required to take annual leave in terms of section 20 (10) of the BCEA due to the Covid 19 pandemic.”
In the early stages, I recall a statement of the Department of Employment and Labour urging employers not to force employees to use their annual leave but rather to apply for TERS benefits. From this, and the purpose of the fund as described in the directive (above), I have understood that employers can require their employees to take paid annual leave and can claim for a reimbursement of some of the money from the TERS fund which has now been extended to 15 March 2021.
In UASA obo Members v Impala Platinum Limited (JS409/18) [2020] ZALCJHB 116 (21 January 2020) the employer compelled employees who did not participate in a five month strike to take accrued and future annual leave and then deducted remuneration equal to the non-statutory days to which they were entitled in terms of their contract of employment. The Labour Court determined that Section 20(10)(b) of the BCEA gives an employer a discretion to determine the time when employees take annual leave under the Act, when this hasn’t been agreed, but the BCEA does not give the employer that same discretion in respect of additional leave granted over and above the statutory minimum entitlement.MICHAEL – CAN EMPLOYERS FORCE EMPLOYEES TO TAKE LEAVE
Employers can, in terms of the Basic Conditions of Employment Act, determine a leave date. Section 20(10) of the BCEA is absolutely clear.
However, the situation in the Janse Van Vuuren court case can be differentiated from the provisions of Section 20(10) as the flight captain was instructed to remain at home due to an operational reason of the employer. This, in my view, amounted to a type of suspension and certainly wasn’t leave in the sense intended in section 20(10).
Michael Bagraim
Yes, I think the court would have interpreted the “forced leave” differently because of the lockdown.
I agree with Michael’s take that van Vuuren’s case was a kind of “suspension” for operational reasons. The same principle could apply in the case of employees being forced to take leave because of the lockdown.
The reasons for both would be operational requirements – but the causes would be different. The cause in van Vuuren’s case was for reaching retirement age – an internal policy. The cause for other employees was the lockdown – a statutory intervention.Another difference was the provision of TERS in the lockdown to help compensate for the forced leave. It effectively recognized that employees could face forced “suspension” due to exceptional circumstances during the lockdown. TERS was not available in the van Vuuren case – nor was UIF because he was still employed.
A court would probably consider these differences and come to a different conclusion to the one in van Vuuren’s case.
I have noted the comments made by Ingrid and Michael. I think Michael summarised it nicely and gave a response to the question. There is nothing in the BCEA that gives power to an employer to require an employee to take leave. The limited power that the employer has is determining the timing mainly due to operational needs. Its not necessarily a power issue. It has nothing to do with whether an employee can be forced or not. Sometimes, if not most of the time, it helps to read the section in its entirety in order to determine the purpose of the provision on leave. In this case in point for example, section 20(10)(a) which precedes the section that deals with what we are debating, promoted consensus when it comes to leave. If there is no consensus then it can be taken at a time to be determined by the employer( I note the conjunction “or” between subsection). This section does not promote or encourage power play ( or coercive power by employer) but consensus. The same applies to section 21 on pay for annual leave; leave pay must be paid at the start of leave unless there is an agreement in which case it must be paid on usual payday. The provision in section 21( 2) is peremptory. It encourages consensus.
The whole debate turns on the overall purpose of leave. Its rest. And be paid while at rest. There must be a balance between the operational requirements of the employer on the one hand, and the need for compulsory rest that the employee must enjoy. You cant trade on rest( see section 20(11)) of BCEA.
Ingrid referred to the TERS directives. We can add the regulations issued in terms Disaster Management Act. There is no directive or regulation that can override a statute. It will be ultra vires. The use of the of the word require in the directive suggests that the employer has this power. It does not. The directive cannot give this power to any employer. All powers in terms of leave are regulated in terms of BCEA. You cannot be required to take leave in terms of section 20(10) o the BCEA. We have settled that.
Perhaps it is the use of the word “power” and “require” that may be causing confusion. As I understand Section 20 (10), if there is no agreement (and I agree with Cameron that, first and foremost, an attempt should be made to get agreement), then the employer can decide, ie has the final say, as to when leave should be taken and section 20(10) enables the employer to do this. I understand the Covid-19 regulation, when it uses the word “require”, to mean that, in the circumstances of Covid and the restrictions placed on employees working at the employer’s premises, the employer, having tried to reach consensus and getting agreement, can then exercise his/her discretion and “require” the employee to use their annual leave if they have to stay at home (without working) due to Covid. Obviously if they are working from home, they must be paid their full salary unless there is agreement to the contrary (see Macsteel Service Centres SA (Pty) Ltd vs. National Union of Metal Workers of South Africa and others (2020) 8 BLLR 772 (LC)).
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