Covid-19 and Vulnerable Workers

May 21, 2020


[Update: DoH published Guidelines on Vulnerable Workers - 25 May 2020]


The phased-in lifting of the lockdown in South Africa means that employers can start to open up their businesses again. There are, however, measures the employer must put in place prior to the return of employees to the workplace. One of the requirements is that ‘special measures’ must be implemented for employees over the age of 60 years and those with health issues or comorbidities.

There have been a lot of questions about how employers should handle employees who are regarded as such ‘vulnerable workers’ for the purposes of Covid-19 back-to-work measures. In particular, there is a misconception that such employees may not return to the physical workplace, and some believe that such employees would be entitled to (paid) ‘special leave’ if they fall into this category. It is not quite as simple as that.


Who are classified as ‘vulnerable...

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Planning Covid19 work rosters - understand your risks

Apr 30, 2020

The question was bound to come up: on what basis can South African employers include or exclude staff when reopening business and starting (partial or phased-in) operations?

Can staff who use public transport to get to work be legitimately regarded as posing or being subjected to a greater health risk than their colleagues who might have their own transport - and be excluded from call-backs on that basis? 

On the face of it, it might seem like a simple enough question with only health concerns in mind. However, there is great potential for decisions that are arbitrary, subjective and based on assumptions that might not be able to be objectively substantiated. Taking decisions about the presumed health vulnerability of employees without relevant medical information, is equally risky. Any selection or differential treatment will have to be defensible in terms of solid scientific facts or a neutral operational rationale - since this situation can very...

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Employment: Regrouping after Lockdown

Apr 26, 2020
There is a lot going around to be negative about at the moment - including the many difficult decisions to be made by organisations everywhere as we are planning for the post-lockdown environment. The difficulties of this situation are very real and the sheer survival of people and organisations may be at stake. It however also presents the opportunity for employers to take a step back, to regroup and to reset.

Where do we go from here?

This question was debated during a recent panel discussion of the South Africa Board for People Practices (SABPP) and summarised in an article written by Sherisa Rajah (Partner at Fasken). The conclusion was that "employers are urgently required to bring into being business operating procedures that address capabilities to manage change. An employer's structures and terms need to consider change, risk and emergency management. This will, in turn, inform how to deal with people, planning and profit."


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Positive change in the face of adversity

Apr 22, 2020


Today we have decided that it is time for a bit of positivity and a splash of colour! There is enough going around to be negative about at the moment - including the many difficult decisions to be made by organisations everywhere as we are planning for the post-lockdown environment.

We must however not lose sight of the opportunities that may come out of this whole difficult process.

  Our country might just be able to shake loose the shackles of inaction as regards much-needed economic (and possibly even political) reforms. Avenues for assistance and collaboration that may have been tightly closed before, have opened up due to the fact that everyone (whether local, global, public or private) is in the same boat.

  Many recalcitrant executives who have put off delving into and anticipating the 4IR-world, and who have resisted pleas to investigate flexible work, gigging, the use of freelancers and so on, have been forced into remote-work...

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Rules, discipline and performance issues when your employees work remotely

Apr 18, 2020

No one knows what the world (and specifically the working world) will look like post Covid-19. But everyone agrees that there will be a 'new normal'. Things will not go back to the way they were and the best way to prepare for that, is to change our perceptions and mindsets - especially where these have been based in convention rather than facts or best practice. 

Body-in-the-seat: necessity or convention? The debate is moot, for now.

There have been many calls over recent years for the restructuring of how work is done - making more room for our families and questioning the real value of the traditional workday. Studies on actual employee productivity have found that having a body-in-the-seat does not equal productivity. Yet many companies and managers have been clinging to the belief that when employees have their bodies-in-their-seats, it means they are productive. Now everybody has suddenly been forced into an all too real practical test - and many...
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Covid-19 and UIF benefits explained

Apr 06, 2020

UPDATED: 14 April 2020

South Africa has responded to the Covid-19 pandemic by instituting various containment measures, including a period of compulsory lockdown.

During the compulsory lockdown period, no employees may present themselves at the workplace, however -

  • Exempted from this prohibition are employees, whose job functions have been determined to be essential services, or supporting essential services, or as otherwise permitted in terms of Government Regulations
  • Where the job functions of any employee allow and the employer has work available, employees may work remotely.
  • Where employees cannot work remotely or there is no work available, employees will not work at all. In terms of the principle of “no work, no pay”, employees who do not work, are not entitled to any remuneration.

There is however at least a moral duty on employer to assist employees to survive during the period of lockdown.  Large employers have been urged by the President to continue...

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Incompatibility in the Workplace - those irreconcilable differences

Mar 08, 2020

Conflict between employees in the workplace is an increasing trend, and employers are often at a loss of how to deal with it. Choosing the right process to address the situation is however extremely important, as the Labour Appeal Court has recently again emphasised.  

The problem

An employee’s attitude, his/her way of doing things, disruptiveness, pushiness, temper, impatience, lack of tact, meddling, manipulation, interpersonal relationships or just general disagreeability, can cause upsets that interfere with the smooth running of an employer’s operations. Although such employees may be meeting targets and performing on par, if other employees persistently complain about them, clients don’t want to work with them and they become defensive whenever you raise this with them, you will have to address the issue one way or another.

Many employers or HR Managers would first try mediation – often contracting external experts – but if this does not have...

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Probation disguised as fixed-term contracts

Feb 27, 2020


There are still employers who try to avoid proper probation by using fixed term contracts. And coming up with clever legal arguments to try and circumvent statutory provisions. The Labour Court would have none of it.   


We frequently get enquiries from employees who had been appointed ‘on probation’ for a few months, and then find themselves still working for the employer some two months after the probationary deadline, without any formal confirmation of their employment status, and lacking a ‘permanent’ contract.

In the recent case of National Union of Public Service and Allied Workers (NUPSAW) V Mfingwana and Others (C251/17) [2020] ZALCCT 4 (20 February 2020), the employer who found itself in a situation like this and came up with some creative ideas to try and circumvent the law, was in fact a Trade Union! The Labour Court made some interesting and noteworthy observations about their approach.


The Union employed Mr...

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Equal Pay claims explained - simply

Feb 11, 2020


I received the following question via email this week:

"I need advice as I'm working for the company performing the same job with other employees but I'm not getting the same salary as theirs. Is it legal? What must I do in a situation like this?"

This is an often-asked question and based on a number of misconceptions. There is no 'short' answer, but I'll highlight the most important points.

'Equal pay for equal work' does NOT literally mean that if an employee does the same job as a fellow employee, they must be paid the same amount – as per the question above.

Employers are not required to pay all their comparable employees the same remuneration. The Employment Equity Act prohibits:

  • unfair
  • discrimination
  • based on a difference in terms and conditions of employment
  • between employees of the same employer
  • performing the same or substantially the same work or work of equal value
  • that is directly or indirectly based on any one or more of the grounds listed in section 6(1...
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PARENTAL LEAVE (Paternity leave, Adoption leave and Surrogacy leave)

Dec 31, 2019


[UPDATE: In terms of GGR 42925 of 23 December 2019, all categories of parental leave are in operation from 1 January 2020, by way of an amendment to section 25 of the BCEA.]

These new categories of leave have been introduced during 2019, to make provision for longer paternity leave, but also specifically for parents in non-traditional relationships; or who may be adopting or have surrogacy arrangement.

All of this leave is unpaid (just like maternity leave), unless the employer has a policy to provide for (part-) payment during these periods of leave, or it is governed by a Collective Agreement. The parents can however claim UIF benefits, subject to certain conditions.

Where an employee is one of two parents who both qualify for adoption leave or commissioning surrogacy leave, not both of them will be able to apply for or claim UIF benefits for that type of leave. The parent who does not take the adoption- or surrogacy leave, will be eligible for parental...

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