South African labour law met COVID-19 with ordinary tools and left the hard questions to soft law

Introduction

The first hard lockdown began on 26 March 2020, and within weeks South African labour law was being asked questions it had never really been built for (Nxesi, 2022). Who pays a worker whose employer has been shut down by regulation? Can a company run a section 189A consultation over Zoom? What happens to an employee who simply will not take a vaccine? Köhler et al. (2023) found that people working in industries that were not allowed to operate were about three percentage points less likely to be employed afterwards, and that this effect came mainly from informal work and not from formal jobs. So the pandemic landed hardest on the people whom labour law reaches least, which is worth keeping in mind when we judge how well the law coped (Ncamane, 2024).

This paper argues that South African labour law coped with COVID-19 best where the problem looked like an ordinary labour dispute, and worst where it needed a new rule. Consultation by video link, unilateral pay cuts and employees who ignored safety protocols were handled by the Labour Court with familiar principles (Mokofe and Van Eck, 2022). Compulsory vaccination, relief for workers outside the contribution system and work from home were handled by directions, codes of practice and administrative improvisation, and the results were uneven (Mufamadi and Letsiri, 2022; Ncamane, 2024). The sections below look at what the Labour Court actually decided, why health and safety duties carried so much of the weight, why vaccination mandates stayed unsettled, what the relief scheme and the retrenchment cases show, and how little the law says about remote work.

What the Labour Court actually decided

The first pandemic cases were procedural. In Food and Allied Workers Union v South African Breweries, the union said a section 189A consultation held over Zoom was unfair. Moshoana J disagreed on 28 May 2020. The Act does not prescribe the form consultation must take, technical glitches did not taint the process, and a union that walks out of a process cannot later complain that it was incomplete (FAWU v SAB, 2020). Mokofe and Van Eck (2022) agree with the result and add that parties should not treat gaps in technology as a reason to stall collective processes. It is a sensible ruling. Still, notice how little new law it needed, because the court simply treated lockdown as a new normal and applied what was already there (Mntwelizwe and Masumbe, 2024).

Macsteel Service Centres SA v NUMSA came a few days later, on 3 June 2020. The employer had paid full wages for March and April, then announced a 20 per cent cut for May to July so that it could avoid retrenchments, and it promised to apply for TERS and top up pay when the money came in. The union struck. Prinsloo J held that the cut was a unilateral change to terms and conditions, refused to weigh whether the employer’s reasons were good because that was a matter for conciliation, and said the promise to apply for TERS did not restore the status quo (Macsteel v NUMSA, 2020). That is orthodox, but it seems to have left employers with an awkward choice between negotiating and retrenching, and the decision says nothing about what a fair temporary cut might look like (Mntwelizwe and Masumbe, 2024).

Then there is vaccination, where the Labour Court’s contribution was thinner than people sometimes assume. In Solidarity obo Members v Ernest Lowe, decided on 14 March 2022, Makhura AJ dealt with a policy that let employees onto the premises only if they were vaccinated or produced a negative test. The case was argued as a breach of contract, and counsel confirmed that the constitutional and equality arguments were not being pursued. The court held that the Consolidated Direction was binding subordinate legislation, but that its provisions on mandatory vaccination applied only if an employer made vaccination mandatory, which this employer had not done (Solidarity v Ernest Lowe, 2022). So whether a mandate was lawful was left alone, and Mokofe and Van Eck (2022) were still saying that the Labour Court and the Constitutional Court had not given a final answer.

Put together, the record shows a court answering the question put to it and not much more. That matters for the argument here. Mokofe and Van Eck (2022) conclude that courts tend to favour public health over individual rights, yet the Labour Court decisions they discuss concern protocol breaches, consultation and pay, and none is a direct challenge to a vaccination rule. The vaccination dismissals in the sources were decided at the CCMA and bargaining councils (Khan and Hagglund, 2023; Mntwelizwe and Masumbe, 2024).

Health and safety duties carried much of the weight

When it comes to workplace infection, the Occupational Health and Safety Act 85 of 1993 did a lot of the work. Section 8 requires an employer to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to health, and Khan and Hagglund (2023) add sections 9 and 14 to complete the picture. The Regulations for Hazardous Biological Agents, published on 16 March 2022, then sorted agents into four groups, and Khan and Hagglund (2023) treat COVID-19 as a Group 3 agent (Republic of South Africa, 2022c). On top of that sat the Code of Practice on managing exposure to SARS-CoV-2, made under section 203(2A) of the Labour Relations Act, which required a risk assessment, a plan, and consultation with the union or the health and safety committee. It also let employees refuse work that reasonably appeared to carry an imminent and serious risk of infection, without being disciplined for it (Republic of South Africa, 2022b; Mokofe and Van Eck, 2022).

The best-known Labour Court decision on these duties is Eskort Ltd v Mogotsi. Mr Mogotsi, an assistant butchery manager, knew a colleague had tested positive and had symptoms himself. He kept coming to work, walked the shop floor without a mask and hugged a colleague with underlying health conditions. A CCMA arbitrator found him grossly negligent but reinstated him with a final written warning. On review, Tlhotlhalemaje J set the award aside, held that the employer’s disciplinary code was only a guide on sanction, and substituted a finding that the dismissal was fair (Eskort Ltd v Mogotsi, 2021). Khumalo (2021) reads the case as a reminder that protocols have to be enforced and not treated as decoration, and the court itself urged employers to check that written protocols are actually followed.

What stands out is which way the duty ran. Eskort and the other conduct cases collected by Mntwelizwe and Masumbe (2024) mostly ask whether an employee complied. The reverse question, whether an employer supplied what the Act required, is much less visible. In NEHAWU v Minister of Health the union lost because it could not prove that personal protective equipment had not been provided (Mokofe and Van Eck, 2022). Baboolal-Frank (2021) reports frontline health workers reusing masks and improvising protection during shortages, but her paper names no employment cases, so it is hard to say how often such failures reached a forum. The evidence is lopsided.

Vaccination mandates stayed in soft law and the CCMA

The central difficulty is that no statute said whether an employer could require vaccination. Mufamadi and Letsiri (2022) argue that compulsory vaccination amounts to compulsory medical treatment, which labour legislation does not regulate, so they turn to the National Health Act on informed consent and to the employer’s duty under the Occupational Health and Safety Act. The 2022 Code did not settle this whole thing either. As published, it does not impose a blanket mandate. Employers had to build vaccination measures into their plans with dates by which employees must be vaccinated, they could ask for proof of status, and an employee who refused had to be counselled and, where reasonable, accommodated in a position that did not require vaccination (Republic of South Africa, 2022b; Khan and Hagglund, 2023). In other words the employer’s power lived in a code and in the employer’s own policy, not in an Act of Parliament.

The CCMA awards that followed were not consistent, and the inconsistency is instructive. In Mulderij v Goldrush Group, in January 2022, the commissioner treated a refusal to vaccinate in a high-risk role as incapacity and found the dismissal substantively fair (Mokofe and Van Eck, 2022; Khan and Hagglund, 2023). In another matter against Baroque Medical, an employee who refused vaccination was retrenched for operational requirements and the dismissal was upheld (Mntwelizwe, 2025). A June 2022 award against the same employer went the other way, found the dismissal unfair and declared the mandatory policy unconstitutional (Mntwelizwe, 2025). Mokofe and Van Eck (2022) call that last award flawed, because commissioners cannot declare workplace rules unconstitutional, because the commissioner did not consider the Code, and because misconduct and operational requirements were run together. Basically the same refusal was placed in three different boxes, which is hard to defend as coherent law.

The academic commentary splits as well. Khan and Hagglund (2023) accept that section 12(2)(b) of the Constitution protects bodily integrity but argue that a mandate can pass the limitations test in section 36, because vaccines were effective, safe and free, and they support mandates in high-risk settings such as frontline healthcare while rejecting a one-size-fits-all approach. Mntwelizwe (2025) concludes that mandatory policies are unconstitutional, and also describes the question as complex and dependent on the facts, which seems to pull in two directions. Her argument that the Code and employer policies are not laws of general application is, I think, the stronger point. Section 36 justifies limits only through law of general application, so if the power to mandate sits in a code and a workplace policy, the justification Khan and Hagglund rely on is not easily available.

Nobody has resolved this. The state of disaster was lifted in April 2022 (Republic of South Africa, 2022a), which probably took the pressure off litigation, and the commentary I have drawn on, the latest published in 2025, does not report a final ruling from the Labour Appeal Court or the Constitutional Court. Mokofe and Van Eck (2022) said Constitutional Court guidance was needed, and it still has not appeared in the sources. The honest conclusion is that soft law let the question lapse without answering it. Mntwelizwe and Masumbe (2024) go further and propose a clause in the Labour Relations Act setting out protections for employers and employees during a pandemic, which seems a proportionate response if a statute is the aim.

Relief and retrenchment fell first on formal workers

The Temporary Employee/Employer Relief Scheme was the pandemic’s biggest labour market intervention. It was announced on 26 March 2020 and, by the minister’s account, paid out about R64 billion to 5.7 million workers against an initial budget of R40 billion (Nxesi, 2022). Ncamane (2024) puts the figure at roughly R65 billion, so the exact total depends on the source. The 2021 direction, issued under the disaster regulations and not as an amendment to the Unemployment Insurance Act, gave full benefits to contributors whose employers had declared and paid contributions, topped up to a minimum of R3,500 a month where the benefit and any pay fell below that (Republic of South Africa, 2021). Köhler et al. (2023) describe benefits of 38 to 60 per cent of wages, and note that in the first months eligibility was largely limited to contributors, who were 88 per cent formal-sector workers in early 2020.

Who was left out is the part that matters for labour law. Ncamane (2024) shows that the Act’s definitions of employee and contributor favour formal employment, so informal workers could not claim, and that their main support was the Social Relief of Distress grant, which she describes as too small to meet basic needs. Onukogu (2024) found a narrower exclusion inside the formal system. Foreign workers who had contributed to the Fund were not paid TERS because the computer system recognised South African identity numbers and not passport numbers. Köhler et al. (2023) suggest that the timing and targeting of TERS and the grant may explain why the job losses were concentrated in informal work, though they say they could not test this directly. That caution is fair. Even so, the pattern across the three sources points the same way.

Administration was a second problem. Ncamane (2024) reports that the Auditor-General identified miscalculations and irregular payments, including payments to people who were not eligible, and the minister says about R900 million was recovered through a follow-the-money project (Nxesi, 2022). The fair reading is that the scheme did what it was designed to do for formal workers, moved money quickly, and paid for that speed with weak controls. But the exclusion of informal and some foreign workers was not an accident of administration. It was written into the definitions, which is why Ncamane (2024) proposes amending the definition of employee in the Act and not just patching the scheme.

Retrenchment is where the commentary is least convincing. Mntwelizwe and Masumbe (2024) say many pandemic retrenchments were procedurally or substantively unfair and that the Labour Relations Act is inadequate for pandemics. Yet the retrenchment cases they actually discuss are essentially the two 2020 Labour Court decisions on Zoom consultation and unilateral pay cuts, and both of those show the existing rules bending to fit the situation, not failing. Baboolal-Frank (2021) reports that contract workers and independent contractors received no retrenchment packages and relied on the unemployment fund, which loops straight back to the definitional problem. A broad claim of widespread unfair retrenchment may well be true, but the cases in these sources do not demonstrate it. Evidence of that kind would need CCMA and bargaining council data on section 189 referrals and outcomes.

Remote work was a gap and not a rule

Remote work spread quickly, and the law around it did not. Baboolal-Frank (2021) describes companies moving to Zoom, Skype and Teams, employees using their own utilities and often working longer hours, and managers requiring emailed progress reports as proof of productivity. She treats this as a form of monitoring and recommends that employers subsidise data, devices and calls. Her paper has limits, since it does not analyse home-based safety under any particular statute and names no employment cases, and some of its claims are loose. Still, it records what the other sources mostly skip (Khan and Hagglund, 2023).

Where remote work appears in the legal material, it appears as a fallback. Among the conditions for full TERS benefits in the 2021 direction was that the employer could not arrange work from home or other measures for vulnerable employees, or could not use employees’ services for operational reasons (Republic of South Africa, 2021). Khan and Hagglund (2023) list remote work among the accommodations an employer should consider before dismissing someone who refuses vaccination. And the only Labour Court ruling in these sources that touches the topic, FAWU v SAB (2020), concerns holding a consultation remotely, not employees working remotely (Mokofe and Van Eck, 2022). None of the sources reviewed here points to legislation that deals with work from home as such.

So the position is one of silence. Questions such as who carries the cost of a home office, when a remote employee’s working day ends, and how an employer’s duty of care applies in someone’s living room were left to individual agreements and employer discretion, with Baboolal-Frank (2021) suggesting the law had simply not caught up and Mntwelizwe and Masumbe (2024) concluding that labour regulation was ill suited to pandemics generally. The sources are thin, but the gap is real enough that a future pandemic would meet it again. It is the cheapest of the three gaps to fix, since a code of good practice does not need a constitutional ruling.

Conclusion

South African labour law was at its strongest in the pandemic when the dispute was a recognisable one. A union objecting to Zoom consultation, an employer cutting pay by 20 per cent, a butchery manager hugging a vulnerable colleague after a positive test: the Labour Court dealt with each through principles it already had (FAWU v SAB, 2020; Macsteel v NUMSA, 2020; Eskort Ltd v Mogotsi, 2021). Health and safety law supplied the duties, and the Code of Practice supplied the detail (Khan and Hagglund, 2023).

Where there was no ready principle, the law relied on soft instruments. Vaccination mandates rested on a code and on employer policies, and the CCMA produced awards that sorted the same refusal into incapacity, operational requirements and misconduct (Mntwelizwe, 2025; Mokofe and Van Eck, 2022). Relief ran through a direction that reached contributors and missed informal and some foreign workers because of how the Act defines an employee (Ncamane, 2024; Onukogu, 2024). Remote work was hardly regulated at all (Baboolal-Frank, 2021).

Of the reforms on offer, the best supported is the amendment of the definition of employee in the Unemployment Insurance Act, since the evidence of exclusion is consistent across several sources (Ncamane, 2024; Onukogu, 2024; Köhler et al., 2023). A pandemic clause in the Labour Relations Act, as Mntwelizwe and Masumbe (2024) propose, is reasonable but would need drafting that answers the section 36 problem about general application. Claims that retrenchments were widely unfair should wait for better data. The wider lesson is probably that ordinary tools are enough only until the pandemic asks something new, and that is where Parliament, and not a code or a commissioner, ought to answer.

Reference list

Baboolal-Frank, R. (2021) The implications of COVID-19 in the workplace in South Africa. Journal of Legal, Ethical and Regulatory Issues, 24(6), pp. 1-8. Available at: https://repository.up.ac.za/handle/2263/88708 (Accessed: 18 October 2026).

Khan, F. and Hagglund, K. (2023) Mandatory Covid-19 vaccinations at universities in South Africa: guidance from the United States and the European Union. Obiter, 44(1), pp. 139-161. doi:https://doi.org/10.17159/obiter.v44i1.13911

Köhler, T., Bhorat, H., Hill, R. and Stanwix, B. (2023) Lockdown stringency and employment formality: evidence from the COVID-19 pandemic in South Africa. Journal for Labour Market Research, 57(1), article 3. doi:https://doi.org/10.1186/s12651-022-00329-0

Khumalo, B. (2021) Comply with workplace COVID-19 protocols or face dismissal: a stark reminder from Eskort Limited v Stuurman Mogotsi and Others (JR1644/20) [2021] ZALCJHB 53. De Jure Law Journal, 54, pp. 579-587. Available at: https://www.dejure.up.ac.za/images/files/vol54-2021/Khumalo%20final.pdf (Accessed: 18 October 2026).

Mntwelizwe, S. (2025) The constitutionality of mandatory COVID-19 vaccinations. Obiter, 46(1), pp. 141-148. doi:https://doi.org/10.17159/hz0mxx30

Mntwelizwe, S. and Masumbe, P.S. (2024) The response of labour law to COVID-19 related dismissal in South Africa. Perspectives of Law and Public Administration, 13(3), pp. 402-416. doi:https://doi.org/10.62768/plpa/2024/13/3/06

Mokofe, W.M. and Van Eck, S. (2022) COVID-19 at the workplace: what lessons are to be gained from early case law? De Jure Law Journal, 55(1), pp. 155-172. doi:https://doi.org/10.17159/2225-7160/2022/v55a10

Mufamadi, K. and Letsiri, K. (2022) ‘Mandatory vaccination against Covid-19’, in Watney, M. (ed.) The impact of COVID-19 on the future of law and related disciplines. Johannesburg: UJ Press, pp. 199-219. doi:https://doi.org/10.36615/9781776405657-10

Ncamane, N. (2024) An analysis of informal workers and the coverage of South Africa’s Covid-19 Temporary Employee/Employer Relief Scheme (TERS). Law, Democracy and Development, 28, pp. 288-311. doi:https://doi.org/10.17159/2077-4907/2024/ldd.v28.13

Onukogu, C.J. (2024) Unemployment insurance claims during the Covid-19 pandemic: the experiences of temporary migrant workers employed in South Africa. Journal of Labor and Society, 27(3), pp. 415-440. doi:https://doi.org/10.1163/24714607-bja10146

Legislation and case law

Eskort Ltd v Mogotsi (JR1644/20) [2021] ZALCJHB 53; (2021) 42 ILJ 1201 (LC). Available at: https://www.saflii.org/za/cases/ZALCJHB/2021/53.html (Accessed: 18 October 2026).

Food and Allied Workers Union v South African Breweries (Pty) Ltd and Another (J435/20) [2020] ZALCJHB 92; (2020) 41 ILJ 2652 (LC). Available at: https://www.saflii.org/za/cases/ZALCJHB/2020/92.html (Accessed: 18 October 2026).

Macsteel Service Centres SA (Pty) Ltd v National Union of Metal Workers of South Africa and Others (J483/20) [2020] ZALCJHB 129; [2020] 8 BLLR 772 (LC). Available at: https://www.saflii.org/za/cases/ZALCJHB/2020/129.html (Accessed: 18 October 2026).

Nxesi, T. (2022) Two-year anniversary of the UIF’s Covid-19 TERS. Pretoria: Government of South Africa, 4 April. Available at: https://www.gov.za/blog/two-year-anniversary-uif%E2%80%99s-covid-19-ters (Accessed: 18 October 2026).

Republic of South Africa (1993) Occupational Health and Safety Act 85 of 1993, section 8. Available at: https://www.saflii.org/za/legis/consol_act/ohasa1993273/ (Accessed: 18 October 2026).

Republic of South Africa (1995) Labour Relations Act 66 of 1995, sections 189 and 189A. Available at: https://www.saflii.org/za/legis/consol_act/lra1995188/ (Accessed: 18 October 2026).

Republic of South Africa (2021) COVID-19 Temporary Employee/Employer Relief Scheme (C19 TERS) Direction, 2021. Government Notice R342, Government Gazette 44465, 20 April 2021. Available at: https://lawlibrary.org.za/akn/za/act/gn/2021/r342/eng@2021-04-20 (Accessed: 18 October 2026).

Republic of South Africa (2022a) Regulations in place with lifting of National State of Disaster. Available at: https://www.gov.za/covid-19/about/transitional (Accessed: 18 October 2026).

Republic of South Africa (2022b) Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace. Government Gazette 46043, March 2022. Available at: https://www.gov.za/sites/default/files/gcis_document/202203/46043rg11405gon1876.pdf (Accessed: 18 October 2026).

Republic of South Africa (2022c) Regulations for Hazardous Biological Agents, 2022. Government Notice R1887, Government Gazette 46051, 16 March 2022. Available at: https://lawlibrary.org.za/akn/za/act/gn/2022/r1887 (Accessed: 18 October 2026).

Solidarity obo Members and Another v Ernest Lowe, a Division of Hudaco Trading (Pty) Ltd (J49/22) [2022] ZALCJHB 61; (2022) 43 ILJ 1125 (LC). Available at: https://www.saflii.org/za/cases/ZALCJHB/2022/61.html (Accessed: 18 October 2026).