It has been clear law over many years that employees are entitled to refuse to continue working in hazardous situations. Picture: Courtney Africa/African News Agency(ANA)
It has been clear law over many years that employees are entitled to refuse to continue working in hazardous situations. Picture: Courtney Africa/African News Agency(ANA)

Employees can make a case to work from home

By Opinion Time of article published Jul 24, 2020

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by Michael Bagraim

We are hearing reports daily from businesses, trade unions and employees that many individuals are scared to go to work in case they contract the virus.

Contracting the virus at work has certain complications and means claims in terms of the Workmen’s Compensation Fund, including accessing sick leave and possible liability against either the fund or the employer. Fearful employees can request time off but they must understand it would be based on “no work, no pay”.

However, this is not the case if employees can show reasonable justification that the risk of going to work is enormous because the employer has not followed the protocols and regulations as laid down by the Department of Employment and Labour, and the Department of Health. The justification would have to be specific, by specifically mentioning the regulation and by pointing out the breach.

If employees or their representatives can show there is indeed a breach, and that breach leads to risk, the employees would be entitled to be paid a salary.

Furthermore, there is a justification to argue that if employees have comorbidities and can work at home, they should be allowed and encouraged to work from home. Many employers are ensuring their employees are given the wherewithal to work from home by giving them computers, data, and even ergonomic furniture.

It has been clear law over many years that employees are entitled to refuse to continue working in hazardous situations. All our labour legislation points to the duty of care an employer has to the employee. If employees can show the work environment exposes them to hazard, they are entitled to withhold their labour. Employees must be cautioned, however, that a mere allegation will not be sustainable.

The employee would have to show proof that the situation was dangerous and could be improved upon by the employer.

It is recommended employees raise the problems internally and, if necessary, lodge a complaint with the Department of Employment and Labour.

The Commission for Conciliation Mediation and Arbitration is open to complaints of this nature, and a referral can be done immediately by completing the LRA Form 7.11. Even the Labour Court would take a complaint of that nature extremely seriously and would be obliged to convene a hearing as a matter of urgency.

The employee’s health is paramount, and the authorities would always move extremely quickly to protect against issues of this nature.

However, if it can be shown that the employee has raised an issue merely to avoid working or coming into work, then that employee would not only lose out on his or her salary but could also face disciplinary action.

It is, however, recommended that employers should not take disciplinary action against justifiably fearful employees.

Even if the complaint appears to be negligible, one must take into account the psychological effect Covid-19 has had on the workforce. There is an obligation on the employer and the employee (if there is a trade union present the obligation sits with it as well) to discuss any fears that might have arisen.

This obligation would mean an employer, after hearing about the imminent threat or danger, must look at the situation objectively and possibly correct the situation to ensure employees are comfortable and not facing the spread of the virus. Once the employer has done this, it is incumbent upon the employees to present themselves at the workplace and continue with their work.

All employers are fully aware of what is required of them and should be conversant at this stage with all the regulations.

In my experience, most employers have appointed a health and safety officer who has a full copy of the regulations and who is charged with the responsibility of implementing these regulations.

Management must ensure the health officer not only has the power to enforce strict adherence to the regulations, but also has the equipment and tools to ensure everyone is properly sanitised, fully masked, and keeping their distance. We are facing an incredibly strange and rather mysterious virus, and even at this stage very little is known about it.

When employees test positive and are sent home, they can immediately access their sick leave. When that is used up they can either claim from the Unemployment Insurance Fund or be entitled to full salary for three months from the employer, which the employer would claim back from the Workmen’s Compensation Fund.

The real problem then lies with the employer who would have to try to have those monies reimbursed in due course.

The Workmen’s Compensation Fund has, unfortunately, an extremely bad history of payment, and it is suspected it will not improve soon. Over the past 20 years, we have seen enormous administrative problems with the Fund, which has caused hundreds of doctors and medical institutions to refuse to treat Workmen’s Compensation patients because these professionals don’t always get paid.

A lot of issues do arise when employees are expected to work from home and to conduct their daily business remotely. It should be said that employees expected to work from home would have to be paid the same salary as if they were working from their normal place of work. Furthermore, employees working from home would be expected to be as productive and would be expected to adhere to normal working hours.

The employer is duty-bound to provide the correct equipment and provide help to ensure the employee remain as productive as possible.

We are seeing interesting discussions such as whether the employer would have to pay for the internet and would have to supply proper equipment ,such as furniture. These are extraordinary circumstances calling for extraordinary solutions.

It is interesting to note that the UI 19 Form, the claim form used by the Department of Employment and Labour, has added a number 17 to the form which is “reduced work time”.

In other words, should an employer require an employee to do only 50% or thereabouts of the time worked, and in turn reduces the salary, then an employee can insist that the employer complete the UI 19 Form to submit to the Department of Employment and Labour (UIF), to claim the shortfall of the monies paid to him or her.

Although it does appear that the Unemployment Insurance Fund is slowly running out of funding, it is worth at least trying to claim these monies from the Department of Employment and Labour.

At this stage, the claims for the emergency funding over April, May and June are still open. There is no claim for July.

* Michael Bagraim is the DA's deputy spokesperson for Employment and Labour, and a labour lawyer.

** The views expressed here are not necessarily those of Independent Media.

Cape Argus

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