nxesiBL Premium writes that confusion abounds on the rights and obligations of employees and employers during the economic shutdown and at a televised briefing on Tuesday labour minister Thulas Nxesi did a good job of adding to the confusion.  

He expressed disapproval of employers who had opted to compel employees to take their annual leave, but in the very next sentence acknowledged that this was in fact their legal right.  Under the Basic Conditions of Employment Act (BCEA), employers should strive to reach agreement with employees on when their leave will be taken.  But where there is no agreement, employers may compel employees to take their leave at a specified time.  Nxesi stated:  “We do understand that in terms of the leave determination, employers can compel employees to take leave at any time as they deem fit.  However, this is a unique situation that requires all of us to act in a manner that promotes social solidarity.”  The resulting interpretation by the media was that employers may not compel employees to take their annual leave at this time.  While this interpretation is wrong, it is now widely believed to be the case by trade unions.  Regarding “unpaid leave”, the BCEA is silent.  According to legal advice to Nedlac, what would apply where workers are told to stay at home and will not be paid is “supervening impossibility”.  This is where unforeseeable circumstances prevent someone from fulfilling a contract through no fault of their own, similar to the idea of issuing a force majeure on a supplier contract.


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