Can your employer force you to take leave? + 5 other Qs, answered

Published on 2nd June, 2020 at 11:30 am

In the aftermath of COVID-19, work and income stability have been turned on their head – so it’s even more important to know your employment rights. Labour lawyer Neels van Rooyen answers common questions about your leave, other income streams and more.

Employment question #1: Can I be forced to take paid leave from my annual leave balance?

Yes, but there are nuances to this rule depending on how it applies to your situation.

“The Basic Conditions of Employment Act (BCEA) provides that an employer can determine when an employee takes annual leave,” says van Rooyen. An example of this would be the common practice in some sectors for employers to require employees to take their annual leave during the business’s annual shutdown, either at year-end or during winter.

In fact, being compelled to take annual leave can protect your income, ensuring you get paid during a time when restrictions bar you from being able to work. “There is no legal obligation on employers to pay employees who don’t work or aren’t on the types of paid leave provided for by the BCEA,” adds van Rooyen. In other words, your employer can argue that no work = no pay.

What if my forced leave results in a negative leave balance?

Let’s begin with the principle of paid leave: the days of paid annual leave you accrue reflect as a rand value liability on your employer’s books. So, for argument’s sake, if you resign without taking the 15 days’ leave you’ve accrued, the business should pay out the rand value of those days as a cash sum when you leave.

So, if you go into negative leave, this converts as a ‘leave debit’, i.e. you’re indebted to the business and would be expected to repay it since you were unable to accrue that leave to reach a zero balance before leaving. “Being forced into a negative leave balance would mean your employer creates an obligation against your will,” explains van Rooyen. Read on for more about this.

“You can legally refuse to accept being forced into negative leave, but then you also need to accept that further absence from work will be unpaid,” says van Rooyen.

Employment question #2: Can my employer force me to take unpaid leave?

No, says van Rooyen. However, as mentioned earlier, you can legally refuse annual leave – just note that your employer is under no obligation to pay you for this downtime.

Can I claim from the Unemployment Insurance Fund (UIF) for unpaid leave?

Considering that you’re on leave and not unemployed, the answer is no – but this applies in the ordinary course of business. UIF is an unemployment benefit, and since you’d still be employed (just not working presently), you wouldn’t have the right to these benefits.

If your income has been impacted by the COVID-19 lockdown, there is a process that your employer can follow on your behalf to claim from the COVID-19 Temporary Employer Relief Scheme (TERS) set up by the Department of Labour. “This benefit is strictly related to the lockdown, is limited to a period of three months, and is a relatively small portion of a salary/wage, calculated on a sliding scale with a minimum guaranteed benefit of R3 500,” says van Rooyen. “An employee earning R3 500 or less per month will receive that amount.”

How do I claim from the COVID-19 TERS?

Your employer needs to submit a claim on your behalf showing that you have or will suffer a loss of income due to the lockdown. The UIF will pay out to your employer, who must then pay it to you accordingly.

“Anyone earning over R17 712 per month will receive only a fraction of their earnings,” notes van Rooyen. “As it stands, it seems that the highest possible benefit from the COVID-19 TERS will be about R6 600. However, your employer can top up the difference between this benefit and your normal salary.”

If your financial situation has been impacted by changes to your work or income, speak to your financial planner to update your financial plan accordingly. Book a meeting here, which can be via phone call.

Employment question #3: Are furloughs recognised in South Africa, and who funds them?

Here we recognise furloughs as a temporary lay-off, says van Rooyen. It involves being sent home because your employer has no work and has temporarily closed their doors. “This is provided for in South African labour law. As an employee, you can claim unemployment benefits from the UIF,” he explains.

But, in the aftermath of COVID-19, it’s important to note that the lockdown was a government-mandated pause for businesses, and therefore a temporary lay-off wouldn’t apply.

Temporary lay-offs post-lockdown

“Since businesses will struggle after the lockdown, despite being able to trade freely, temporary lay-offs may become the norm,” he adds. “In this situation, you can claim the ordinary unemployment benefits (UIF).”

Employment question #4: Can I be fired for having a side hustle?

This depends on the agreement you have with your employer. “Most employment contracts these days have clauses dealing with this issue; some contracts might allow private businesses or extraneous employment if disclosed and consented to by the employer, but many have a blanket prohibition,” says van Rooyen.

Impact after hours

If your contract doesn’t prohibit it, you could seek other employment or run your own business (side hustle) – so long as it doesn’t create a conflict of interest (operating as a competitor business), or impact your attendance and/or performance in your full-time job.

It’s unlawful, even if your contract doesn’t specify, to run a competitor business after hours or on weekends – especially if you’re using your employer’s equipment.

Impact during office hours

Besides the direct economic impact of essentially ‘stealing’ business from your employer, the knock-on effect of working after hours would impact your performance in your full-time job. Van Rooyen explains: “Your employer may be concerned that a ‘side hustle’ could impact on work performance because, for example, you, as the employee, might come to work tired and sleepy because the ‘hustle’ took up too much of your time overnight, that you arrive late, leave too early and, worst or all, even do some of the ‘side hustle’ work during office hours.”

Employment question #5: During forced unpaid leave, can my employer penalise or even fire me for having a side hustle or other means of making additional income?

Considering the previous answer, your contract would determine whether a side hustle would be illegal.

My contract prohibits it

The preferable route to take here is to request your employer’s consent to relax the prohibition.

My contract doesn’t prohibit it

Go forward with your side hustle, on the condition that it doesn’t compete with your employer’s business. “It would still be prudent to inform your employer and get some kind of consent,” says van Rooyen.

Employment question #6: What can I do if I feel I’m being unfairly treated by my employer?

Step 1: Lodge a formal grievance internally

Your initial steps will depend on the formal grievance process your employer has in place. If there isn’t one, you can submit a written grievance to your line manager or HR (perhaps your grievance relates to your line manager, in which case you may want to submit directly to HR).

Step 2: No joy? Try this

Section 186(2) of the Labour Relations Act outlines the definition of ‘unfair labour practice’. “If the issue falls within this definition, and the grievance is not addressed, or inadequately addressed, by management, the next step, would be the referral of an unfair labour practice dispute to the CCMA or applicable Bargaining Council.

Step 3: Assert yourself

“The best, most practical option would be to pursue the grievance as assertively and as far as possible,” says van Rooyen. “The employer’s obligation is to address the grievance and to attempt to resolve it, but resolving it doesn’t necessarily mean that it must be to the employee’s satisfaction.”

Take note

None of the issues addressed in this article fall within the definition of “unfair labour practice” in Section 186 of the LRA, cautions van Rooyen. “The exception would be perhaps if an employer forced an employee to go into annual leave debit (Section 186(2)(a) – provision of benefits to an employee.).”