Can you refuse to return to work if the necessary precautions aren't in place?
Fin24 has reported that according to the new draft labour directives, employees have a right to refuse to work if they have a reasonable belief that the necessary precautions have not been put in place to prevent the transmission of COVID-19.
Elements Global Solutions employment director Sherisa Rajah says where disputes arise around this provision, employers and employees must try and resolve this amicably, otherwise, it can be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) as an unfair labour dispute.
She says what is reasonable and what is necessary differs from workplace to workplace.
We saw that by virtue of sector to sector in the Level 4 guidelines ... so employees should careful to just run along and say 'I am refusing to work' because we have seen a labour court judgment that hasn't been taken further and we see very clear wording that there must be a reasonable belief - something that an objective third party in your position would agree with.Sherisa Rajah, Employment director - Elements Global Solutions
What is necessary in the context of your job, in the context of your workplace that the employer should reasonably be doing? I think that is where there is going to be a lot of dispute because people don't see these words as precursors to bringing claims.Sherisa Rajah, Employment director - Elements Global Solutions
While employees over the age of 60 or who are immunocompromised cannot be permitted to return to work, Rajah says there is no clarity around the legal principle of 'no work, no pay'.
The legal principle of no work no pay continues to apply. By and large, with employers facing hardships that they have seen over the last 8 weeks, it is unlikely that sick leave will be readily conferred to someone who is not sick and who cannot remote work.Sherisa Rajah, Employment director - Elements Global Solutions
At some point, as we chug along this process, such persons are at risk of being terminated ... unless they're going to change the law and say to do so would be discriminatory.Sherisa Rajah, Employment director - Elements Global Solutions
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