It is no secret that the COVID-19 pandemic is a crisis that affects everyone and has severe financial implications for every industry all over South-Africa. Both employers and employees are affected by these implications. On Sunday the 21st of June 2020, the South-African National Taxi Council (Santaco) confirmed its plans to shut down operations on Monday the 22nd of June 2020 in Gauteng. The shutdown arose after taxi drivers had called for months on the Department of Transport for financial assistance due to the losses and impact of the COVID-19 lockdown.
On Friday the 19th of June 2020 the Minister of Transport, Mr Fikile Mbalula unveiled a taxi relief package proposed for taxi drivers. This relief package of over R1.1 billion has been set aside to assist the taxi industry. This relief must be equally looked at through a long-term view through the opportunity created by the COVID-19 pandemic to achieve long-term sustainability of the industry through formalisation and ultimately subsidisation. Mr Mbalula said that the government needs to subsidise the taxi industry and also said in a formal statement: “getting relief support for the taxi industry was a difficult process involving extensive lobbying and convincing the relevant authorities on the importance and need for this fund.”
Mr Mbalula stressed that the assistance to the taxi industry was a relief, and not reimbursing the taxi industry due to the COVID-19 financial losses. The Minister further stated that other industries were also hit hard during the lockdown, especially the long-distance operators. The relief package government has set aside to help the transport sector get back on its feet, is however not enough the taxi associations said, as it will also include e-haling and metered taxi services.
Santaco rejected government’s relief fund, saying its members needed more money. As part of a mass shut down in the Gauteng area, thousands of taxis stopped operations on Monday morning, leaving commuters stranded across the province. Commuters were battling to get to work and school, with taxi drivers refusing to ferry them. Commuters were the ones who were most severely affected by the protest action, as these people could end up facing disciplinary action or even dismissal for non-attendance on the day of the protest action. The country already has a high rate of unemployment which will only worsen the current unemployment situation.
The protest action had created a negative impact on employers and their businesses, as many employees were unable to travel. How should an employer deal with an employee who stays away from work, with or without reason and does not notify the employer that he/she will not come to work as a result of the protest action?
The first question that needs to be answered is whether the employee was absent with or without a valid reason. If the employee has a valid reason, he/she cannot be found guilty of being absent without leave.
The second question deals with the issue of notification. Would the outcome be different if the employee notified the employer of his/her absence? Can an employer dismiss an employee who has an acceptable reason for his/her absence, but fails to notify the employer of the reasons for the absence? The answer to this question is yes. In the matter of Jacobs / JDG Trading (Pty) Ltd , 9 BALR 1045 (P) the employee was dismissed for being absent without leave for five working days. He submitted a medical certificate indicating that he was unfit for work due to lumbago for the first two days, a Thursday, and a Friday. The employee then stayed away from work from Monday to Wednesday the following week and produced a medical certificate during his disciplinary hearing. The employee claimed he had been too ill to contact his manager to inform the manager of his whereabouts and was subsequently dismissed for unauthorised absence from work.
In this matter, it was stated:
“…it is, in my view, implicit in the contract of employment that such an employee should at least notify management as soon as reasonably possible of the reason for the absence and its likely duration. While employees are entitled to sick leave, this entitlement does not relieve them of that duty. In my opinion, an employee is guilty of absenteeism if he or she is absent from work without good reason or, even if there is an acceptable reason for the absence, if he or she fails to inform management timeously of the reason for the absence.”
With the total shut down of operations by Santaco, these unforeseen circumstances may be out of the control of the employees and should be taken into consideration by the employer.
The Department of Transport said that the taxi industry was responsible for about 15.6 million passenger journeys daily. Although the shutdown may be out of the control of the employees, there is still a duty and responsibility on employees to inform and notify employers of their absence and expected date of return.
As an employer, what can you do when an employee is absent without leave (desertion)? Unauthorised absence can be deemed a fair grounds for dismissal, but it pays to know your rights and responsibilities as an employer to avoid unfair dismissal disputes. Therefore, as an employer, a formal desertion process must be followed.
There is no obligation on employers to pay employees their normal pay for periods of unauthorised absence. An employer that fails to pay an employee in these circumstances would not normally be in breach of the employee’s contract of employment. Non-payment would also not amount to an unlawful deduction from wages.
However, to help reduce the likelihood of a dispute about non-payment, employers can include a clause in the contract of employment, stating that employees will not be paid for periods of unauthorised absence. The principle of “no work no pay” would be applicable in these circumstances.
Before making a deduction from the employee’s salary, the employer should investigate the reason for the employee’s absence. Deductions from pay should be made only where the employee does not have an acceptable reason for the absence. Employers should ensure that employees are aware of the notification procedure to follow if they are unable to attend work, like in the situation where Santaco underwent a mass shut down and the entire transport system was disrupted.
It’s important to take note that an employee who does not have a valid reason for his absence, is guilty of absenteeism even if he/she notifies the employer of their absence. An employee who has a valid reason for his/her absence might be found guilty on a charge of absenteeism if they failed to notify the employer timeously of the reasons for their absence.
The current COVID-19 pandemic is a crisis that affects everyone and is without a doubt unprecedented for everyone, which can disrupt the workplace in unforeseen circumstances. However, the responsibility remains on the employee to notify the employer of his/her absence timeously.
Article by: Tiaan Visagie
Dispute Resolution Official – Pretoria