No work, no pay during lockdown

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It is common knowledge that large numbers of employees suddenly found themselves without an income when the strict Level 5 lockdown regulations confined them to their homes from 27 March 2020 until 30 April 2020.

In terms of the regulations only the essential services and a limited number of industries such as companies essential to the production and transportation of food, basic goods, medical supplies as well as banks, supermarkets, and petrol stations continued to operate.

In the matter of Mgabi and others/Modern Plumbing Works (Pty) Ltd three plumbers were each employed on a three month fixed term contract, which would terminate on 30 April 2020. Given that the company was closed during April 2020, they were not paid any wages for the month.

The applicants referred an alleged unfair dismissal dispute, together with a claim in terms of section 73A of the Basic Conditions of Employment Act (“BCEA”) 75 of 1997, to the CCMA.  They claimed that they were short paid for April 2020 and that they were verbally promised an entitlement of three days payment at the end of the employment contract.

They conceded that such an undertaking was not in in their contracts of employment, and that they were informed to cancel their respective TERS applications so that the respondent could apply on their behalf whereafter the money would be paid over for April 2020, once the company received it. They failed to give effect to this request.

The respondent testified that the project for which they were employed came to an end at 30 April 2020, and that their respective employment contracts were styled to reflect an agreement that these would automatically terminate on that date.

The respondent’s unchallenged evidence was that they were not called back when the company started operating again on 1 June 2020 because employees who were called back during Level 3, were contracted for work on other projects which still had to be completed. Further to that all amounts due to the applicants, including their accumulated leave days, were paid out to them during lockdown.

In relying on the decision in Enforce Security Group v Fikile and others [2017] 8 BLLR 745 (LAC), the commissioner found that no dismissal occurred, given that the duration of the project was agreed, and the project had come to an end on 30 April 2020.

The commissioner found that the applicants did not have a claim in terms of section 73A of the BCEA because they did not render services during this period and as such there was no legal liability on the respondent to pay them.

In effect the commissioner found that they had to wait for their respective TERS payments from the Department of Labour and Employment, but could also submit a claim to the UIF.

The commissioner confirmed that there was no duty on the employer to pay employees, alternatively, fixed term contract workers during the lockdown when they did not render any services.