As a result of the nationwide COVID-19 lockdown implemented this past week the Minister of Cooperative Governance and Traditional Affairs, Ms. Nkosazana Dlamini-Zuma (hereinafter referred to as “Zuma”) published the Government Gazette Regulations No. 11062 (hereinafter referred to as “the Gazette”) on 25th March 2020 which has amended the Disaster Management Act 57 of 2002 (hereinafter referred to as “the DMA”) by inserting thereinto certain regulations clarifying the meaning of essential goods, essential services, restriction on movement of persons and goods as well as prohibition of public transport. Certain Employers and Employees are deemed essential services and may remain trading, operating and working during the lockdown period. The Gazette referred to section 213 of the Labour Relations Act (hereinafter referred to as “the LRA”) in respect of the definition of essential services.
What is an essential service?
Section 213 of the LRA defines an essential service as:
(a) a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population
(b) the Parliamentary service
(c) the South African Police Services
Zuma however clarified that during lockdown, in the circumstances of the DSA and its recently amended regulations in the Gazette, essential services are inclusive but not limited to the following services:
- Medical health, laboratory and medical services
- Fire prevention and fire fighting
- Grocery stores
- Fuel production, supply and maintenance
- Funeral services
- Newspaper, broadcasting and telecommunication services
- Waste and refuge removal services
The above as stated is not an exhaustive list and the full categorization of essential services can be found in Annexure B Regulation 11A of the Gazette which can be read online at https://live.southafrica.net/media/275995/43148_25-3_cogta.pdf
Who is deemed to be an Essential Service Provider and Essential Services Employee?
First and foremost, Employers and Employees must be clear on who is deemed an Employee in the normal course. Section 213 of the LRA defines an Employee as:
“(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of an employer, and “employed” and “employment” have meanings corresponding to that of ” employee”.
Once it has been established that an employment relationship exists, then for purposes of this article and the COVID-19 nationwide lockdown, it needs to be established if an Employer is an Essential Services Provider. This can be established by checking whether the Employer falls within the categories listed in the Gazette and further if all its Employees who support the operations of the Essential Services Provider are deemed to be Essential Services Employees and required to work during the lockdown period.
On the face of it one would think that essential services are primarily services provided by doctors, nurses, firefighters, refuse removal services, and of course the South African Police Services (SAPS) as per the LRA and the Gazette. However, the aforementioned Essential Services Providers or Essential Services Employees are only the tip of the iceberg so to say in respect of Employees who are deemed essential in the execution of essential services by Essential Services Providers or Employers.
All Employers or businesses who are allowed to trade and operate as Essential Services Providers during the nationwide lockdown and have registered to trade as such and approved to trade as such by the Department of Trade, Industry and Competition have numerous Employees who work for them in the capacity of various support roles (hereinafter referred to as “support staff”) who are ordinary citizens working for Essential Services Providers or Employers and whom Essential Services Providers or Employers rely on to support the rendering and execution of the essential service.
The question has now arisen, during this first time pandemic, whether an ordinary worker who is not an Essential Services Provider or Essential Services Employee themselves by trade is required to render services as instructed by their Employer who is deemed an Essential Services Provider and who will operate as per normal during the lockdown.
Where it gets tricky: Employees who are support staff to Essential Services Employers or Essential Services Providers
By way of example a doctor who works in a hospital or clinic does not work on his or her own. Said doctor would be supported by a number of support staff in order to provide the essential service of medical and health care as per the LRA and the Gazette. These support staff could include receptionists and administrative workers who support the Essential Services Provider in rendering and executing the essential service. We have been inundated with queries by support staff in these circumstances wanting to know whether they are required to work when they themselves do not provide the actual essential service per se. Using this very example, it must be noted that support staff to the Essential Services Provider are indeed Essential Services Employees who are able to carry on working in terms of the Gazette. However, are they required by law to carry on working if they do not wish to do so in fear of contracting COVID-19? We will address this question toward the end of this article.
How do Employees working for Essential Services Providers get to work during the COVID-19 lockdown if public transport which they ordinarily use is prohibited?
The Gazette provides for a permit (hereinafter referred to as “the Permit”) to perform essential services which Employers who are allowed to trade as essential services during the lockdown must complete and distribute to their Employees to carry with them to and from their place of employment to prove to members of the SAPS who may stop them en route to their place of employment that they have permission to leave their residences to attend at work during the lockdown. Along with the Permit the Employee is required to carry his or her identity document with them whilst travelling to confirm that the details on the Permit are in fact the details of the Employee.
Further to the above, if the Essential Services Employer requires certain support staff to attend at work during the lockdown period and the Employee does not have access to transport to attend at work due to the prohibition of public transport during the lock down, the Employer then bears the onus of making the necessary transport arrangements for the Employee rendering or supporting the rendering of essential services provided that no more than 50% of the licensed capacity of the vehicle is exceeded and all directions in respect of hygienic conditions and the limitation of exposure to persons with COVID-19 are adhered to. In essence the Employer must arrange private transport or utilize bus, taxi or e-hailing services such as Uber which the Gazette has authorized to be utilized for the transportation of Essential Services Employees.
What if an Employee essential to the execution of the Essential Services Provider refuses to attend at work?
We have been further inundated with queries by Employees who are support staff to Essential Services Providers questioning whether they can refuse to attend work due to the risk of contracting COVID-19. Support staff are rightfully concerned for their health and safety and those of their family members and society at large and accordingly are declining in staggering numbers to report for duty at the Essential Services Provider or Essential Services Employer with whom they have a contract of employment which unequivocally states that an Employee must render services at a place of employment for remuneration.
It must be noted that support staff are not persons or Employees who have taken oaths to serve their country or the health of its citizens, or any oath at all for that matter. Aside for a contract of employment with an Essential Services Provider or Essential Services Employer, support staff may refuse to render their services during this pandemic out of fear for contracting COVID-19. Whether an Essential Services Employer or Provider can dismiss a support staff member for refusing to attend at work is the million-rand question. It might be very possible that support staff such as receptionists and administrative staff who are refusing to report for duty during the lockdown at high risk areas such as hospitals and clinics out of fear of contracting COVID-19 may have a case to be made that any form of disciplinary action against them for not reporting for work as instructed could be substantively unlawful in the circumstances.
Conclusion
Essential Services Providers and Essential Services Employers should be weary of the manner in which they deal with their support staff who refuse to report for duty during the lockdown. Support staff may be in breach of their contract of employment by refusing to attend at work, however a national lockdown to curtail the spread of COVID-19 may be a justifiable reasonable for support staff to decline to report for duty during the lock down period. The Employee may also be justified in requesting to utilize their available annual leave during the lock down.
We have published a number of articles on the topic of retrenchment and alternatives to retrenchment such as short time work, utilization of annual leave and unpaid leave and in particular what the rights and obligations of Employers and Employees are during this public health catastrophe. The links to the publications for ease of reference are:
We also offer documents Employers may need (contracts, HR Policies, Warnings, Short Time Work and Retrenchment Packs), just to name a few, for download at https://www.contracts4biz.co.za/login.html the costs of which range between R75 and R395 per document for download. Registration is free and the download ensures that Employers can save on costs and time, which is how we are doing our part in this difficult time!
For some further advice on the process of short time work and retrenchment which could very well be the consequence of COVID-19 once the lockdown has passed, have a listen to our brief podcast on the process at:
https://schoemanlaw.podbean.com/e/episode-short-time-and-retrenchment/
Written by Fadia Arnold, Senior Associate, Attorney, Schoeman Law
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