A lone man walks in an unusually quiet central business district of Harare as Zimbabwe began a 21-day national lockdown on March 30 in a bid to stop the spread of COVID-19. Photo – BBC
Zimbabwe went into a 21-day national lockdown on March 30 to help stem the spread of COVID-19. The lockdown — announced in a national broadcast by President Emmerson Mnangagwa — requires workers in sectors deemed non-essential sectors, to stay home.
To enforce the lockdown, the government gazetted a number of Statutory Instruments, including S1 83 of 2020 to legally enforce the lockdown.
But how does this lockdown affect employer and employee relationships?
Am l entitled to a salary during time of lockdown?
In general, as long as the employment contract exists, an employee is entitled to a salary in return for rendering services to the employer. But the law also entitles an employee to a salary if they are absent for a “reasonable cause”. If, for no reasonable cause, the employee fails to render services the employer is entitled to take disciplinary action, which may result in loss of income or an employee being discharged.
Labour Law experts say the lockdown falls into a “reasonable cause” for workers ordered to stay home to continue expecting salaries from their employers, according to labour lawyer Edson Maposa.
At a practical level, some employers might not be able to pay if operations are closed.
Labour lawyer Cephas Mavhondo, however, says there are provisions, if the lockdown prolongs where, “the employer can lawfully terminate the contract of employment through retrenchment on the basis that the company is no longer able to carry the costs. Retrenchment is provided for in terms of section 12 C and 12D in the Labour Act.”
However, before retrenchment, the employer should consider measures to avoid retrenchments such as short-time work or shift systems, Mavhondo adds.
Should my employer provide PPEs for me at work?
According to Article 16 of Occupational Safety and Health Convention, 1981 (No. 155), employers have the overall responsibility of ensuring that employees have protective and preventive clothing to minimize occupational risks. Zimbabwe ratified this convention in April 2003.
Mavhondo says Zimbabwe’s common law and international labour laws require that the employer provides safe and healthy working conditions.
“If the employer fails to do this, he may be liable for damages to the employee if the employee can prove that the employer was responsible for his illness (including COVID-19-related illness),” he says.
In the case of COVID-19, an employer has an obligation to provide employees with masks, gloves and sanitizers and other protective clothing. Maposa says this can be extended to mean that the employer should also take measures to disinfect the workplace. He adds that this does not only protect the employees, but the employer and the public as well. Immediate but not exhaustive examples would be supermarkets staff, medical personnel, public transport operators, the police and all those enforcing the lockdown.
If l am working now and others are on lock down, am l entitled to overtime?
Maposa says as long as the employee is being called to work for normal hours during the lockdown, that does not amount to overtime.
This relates mainly to employees in those sectors that have been deemed essential services. For non-essential services, the issue does not arise as the law mandates them to stay at home and actually provides penalties for those found in breach. The parties are at liberty, however, to agree to hardship allowances or other variations to ensure safety and fair compensation. Overtime becomes due if the employee has to work extra hours during the lockdown.
What rights does an employee who gets infected with COVID-19 have?
When an employee falls sick, soon after reporting the COVID-19-related illness to the employer and the health authorities, the employee is entitled to apply for sick leave in terms of Section 14 of the Labour Act. Mavhondo says the employer is, therefore, obliged to consider the application for sick leave. Where the sickness is prolonged, the laws applicable in respect of extension of sick leave shall apply. Such leave should be generously considered.
Maposa adds that, unless the employee got infected at the workplace or due to the employer’s negligence, the employer has no duty to assist in seeking medical treatment for the employee. The employer generally has no duty to provide medical treatment except for medical assistance through medical aid contributions.
Am l still entitled to an annual leave after the lockdown?
This depends on whether or not the parties agreed to utilise annual leave during the lockdown, according to Maposa.
Statutory Instrument 83 of 2020 does not provide that lockdown days are the same as annual leave days. It is a lockdown, not annual leave, unless parties agree to the contrary. If leave was not utilised, then the employee is still entitled to annual leave. Negotiations and consent between the parties present the best solutions.
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