MICHAEL BAGRAIM
As members of the Jewish community, and following halachic guidance, it’s important for us to remember throughout this plague that our employees rely on their daily wage which can’t be withheld from them.
It’s trite to say that we are all governed by the Labour Relations Act and Basic Conditions of Employment Act. Most employers fully understand that sick employees are entitled to paid sick leave if they receive a medical certificate for more than two days sick leave. In order to qualify for the sick leave, the employee has to be sick, and has to receive the certificate from a qualified practitioner. Furthermore, this sick leave is finite, and calculated on the basis of a sick-leave cycle over a period of 36 months.
During this period, the employee is entitled to the amount of paid sick leave equal to the number of days that that employee would normally work during a period of six weeks. For instance, if working a five-day week, the employee would be entitled to 30 paid sick-leave days, but there must be proof of incapacity. This doesn’t help us when asking people to go into quarantine who might not yet be sick. Employers have been asked to be lenient in these circumstances, and have been asked to have more faith in their employees. Obviously, there will be those who immediately grab at the benefit and take off, even if they have had no exposure and display no symptoms.
Long-term illness over a week could warrant a claim to the Unemployment Insurance Fund, but again, this will require documents and proof. Furthermore, employees could access family responsibility leave for a sick child, and might even volunteer to take their outstanding leave during this period. The Department of Employment and Labour has not published any specific guidelines beyond the law, and as currently advised, when all the various categories of leave have been taken, the employee would be out of the workplace on an unpaid basis.
In a situation of forced closure, some businesses might be able to access short-term agreements in terms of their bargaining councils, and others might be able to negotiate with their trade unions in order to avoid retrenchments. Already I have embarked upon dozens of programmes for dismissals for operational requirements. Many industries, such as tourism, will not survive the next few months if they don’t embark upon wholesale retrenchments.
In smaller businesses we are, as a people, expected to display a certain amount of rachmonis (pity). The Mishna emphasises that the employer can be trusted to pay wages at the end of the day. Obviously, if the employer can afford to at least keep the job open and still try and pay something for the period of no work, it would be the moral thing to do.
Employers are to explore all sorts of other avenues such as working from home, staggered work hours, shorter times, even wage cuts. Many businesses are faced with no income at all, possibly even liquidation. In these circumstances, obviously an employer has to embark upon dismissal for operational requirements with immediate effect.
If work still needs to be done, it’s the employer’s duty to ensure that employees aren’t exposed to harm. Policies can be put into place to avoid exposure to the virus, and healthcare services should be available at all times. All sorts of special needs might have to be accommodated and at the very least, employees, customers, and suppliers must be exposed to education and every single measure possible to disinfect the environment. Infection-control practices must be introduced into the workplace, and all people must be monitored and managed without eliciting fear and anxiety. All rumours and misinformation must be squashed immediately. There are literally dozens of guidelines and practices which can be modified and put into place which will help you curtail direct contact with the public and others.
We must understand that many of our workers are loyal and hardworking, and this is the time for us to rise to the occasion. Clearly, we can’t put the business at risk, and so we must carefully manage the situation. This pandemic will not last forever, and as long as we steer ourselves carefully through this employment crunch, it should be business as normal by the end of the year. Each case must be evaluated on the basis of its unique circumstances, and having a unionised environment might make it particularly challenging. All of us have to mitigate the effects of the downturn in the economy which is unfortunately made worse by load shedding.
I have recommended to my clients that they do away with the need for medical certificates, and explore every way in which employees can work remotely and look at accessing any type of leave possible.
- Michael Bagraim is an attorney specialising in labour law, and advises nationwide on the restructuring and management of labour forces. He is also a Democratic Alliance member of parliament.
