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Under the national state of disaster declared by our president, only certain essential businesses are allowed to operate. A nail salon is not classified as an essential service or permitted to operate – not under the initial lockdown and also not under Alert Level 4 (Gazette 43258 of 29 April 2020). Those businesses operating under the national state of disaster also need to have a permit to do so.
So the nail salon employee who refused to report for work would, if South Africa wasn’t under a national state of disaster, be in breach of her employment contract. However, since the employer’s business has not been classified as performing essential services and does not have a permit to be operating, demanding that employees come to work is unlawful. The employee’s dismissal is both substantively and procedurally unfair – meaning that the reason for her dismissal is not valid and proper procedure was not followed.
The employee should refer the dismissal to the CCMA within 30 days. The CCMA is operational again after the nationwide lockdown, although they are operating on minimised services in terms of the directives issued by the president. They have encouraged the public to use their digital platforms and social media to get in contact with them. The CCMA will still be able to perform telephonic conciliation meetings.
Follow Scorpion Legal Protection on Facebook for more updates and information on your rights during the lockdown.
* This is only basic advice and cannot be relied on solely. This is a fictional scenario compiled from actual cases. The information is correct at the time of being sent to publishing.
Date added: 19 May 2020
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