What happens if a business is forced to close because of Covid-19 and it becomes impossible for an employer and employee to perform under an employment contract? The law states that if both employer and employee are unable to do so, then the obligations of both parties are suspended, until the lockdown ends, and it becomes possible for work to continue.
Before Covid-19, South African employment law and labour courts generally found that the employer had to pay an employee a salary even when the employee did not render services, e.g. in war conditions, where the free movement of employees was restricted.
Now, under the current government-imposed lock-down and limitation of economic activity, employees are restricted from movement unless working in enterprises which are recognised as essential or providing permitted services.
If the employer is not such an enterprise, the employee is placed on temporary lay-off, or unpaid leave. To assist vulnerable workers, who are subject to a temporary lay-off, resulting from the lockdown, the South African government has made R500 billion available, through schemes such as the Temporary Employee Relief Scheme, administered by the Unemployment Insurance Fund.
If an employer is obliged to trim its workforce because it has become impossible to operate, if it seeks to dismiss any employee, it must still ensure that any dismissal is fair and must follow due process laid down by our employment laws.