1. Do I have to pay employees during lockdown?
“No work no pay” still applies
There is no forced annual leave
There is no payment for public holidays
If you are registered with UIF and closed/partially closed, you can apply for the COVID-19 TERS Benefit (www.labour.gov.za)
2. Procedural requirements if I want to retrench or change employment conditions?
Retrenchment must comply with Section 189 of the Labour Relations Act
Consider alternatives first, such as short term or staggered start-ups
Unilateral changes to employment conditions are not allowed and proper consultation is required
Retrenchment compensation includes pro rata salary, accrued leave, notice and severance pay.
Consider offering voluntary severance packages as an alternative.
3. Occupational Health and Safety Act (“OHS”) and COVID-19
COVID-19 falls under group 4 of the Regulation for Hazardous Biological Agents
Compile and implement a COVID-19 Workplace Policy
Pay attention to Health and Safety Policies and Procedures, especially relating to infection control as a practical sub-discipline of epidemiology
Undertake ongoing risk assessment to ensure compliance.
4. Leases, Contract and COVID-19: Force Majeure or “impossibility of performance”?
Failing to pay rental is a breach of your lease. This could result in cancellation of the lease, legal action of recovery of outstanding rental, damages claim for breach and calling upon personal suretyships.
Avoiding losing tenants at a time when tenants is problematic whilst still covering your costs.
What does the lease say?
If there is not Force Majeure clause in your lease, our common law applies.
What must the tenant prove if there is not Force Majeure clause in the lease?
- Unforeseeable with reasonable foresight.
- An absolute as opposed to a probable impossibility.
- An absolute not a relative impossibility.
- Not the fault of either party. - The “contrary common intention of the parties” could override the defense of impossibility.