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In Article Archive, Article Archive - Home, Article Archive - Teazer by Jan Truter11 Comments

As the economic effects of Covid-19 drag on, employers are faced with new questions surrounding the temporary lay-off of employees. Surely lay-off cannot continue forever. So, for how long may employees be laid off?

While most employees are by now able to tender their services, businesses may not be able to take them due to a lack of work. What are the legal requirements?

If there is no agreement

Employees who lawfully tender their services are entitled to be paid, unless a lay-off agreement provides otherwise. Employers may not unilaterally impose lay-off without pay. Laying employees off without an agreement can be regarded as a de facto dismissal.

However, as mentioned in a previous article, the unwillingness of employees to agree to unpaid lay-off could result in their retrenchment.

Bargaining councils

Some bargaining council agreements provide for temporary lay-off by prescribing certain procedures that employers have to follow. Employers may lay off employees without the agreement of the employees, provided that they follow the prescribed procedures. The maximum period of lay-off is normally specified.

Open-ended agreement

Where an employer and its employees have already entered into an open-ended lay-off agreement (i.e. no end date is stipulated), the question is whether lay-off may continue indefinitely.

Lay-off without pay is intended to be temporary. If a lay-off agreement does not specify an end date, we are of the view that the lay-off may continue for as long as the employer has sound operational reasons not to recall the affected employees.

Where possible, employers should attempt to accommodate employees by offering them the opportunity to return to work on reduced working time and reduced pay and benefits (short–time working). It is advisable for the terms of a short-time agreement to be specified in writing.

If it becomes apparent that the employee’s services will not be needed for the foreseeable future or at all, the employer could initiate retrenchment procedures.

An employer may not use lay-off as a ruse to get rid of employees. There may come a point in time where lay-off is no longer justifiable and where continued lay-off may amount to a de facto dismissal despite the existence of a lay-off agreement. Whether this is the case will depend on the circumstances.

Other questions

Other Covid-related questions that are becoming increasingly relevant include: Does leave accrue during lay-off? What selection criteria apply when an employer wants to allow only some employees to return to work? Are employees who are retrenched during a period of lay-off entitled to notice pay? These questions will be addressed in our next article.

Legal considerations

Other legal considerations surrounding temporary lay-off, short–time work and retrenchment were covered in a previous article – see

For Covid-19 related documentation, CLICK HERE

Jan Truter and Barney Jordaan for


  1. We are employed in the Liquor Industry which is extremely volatile to Govt Lock downs .
    Our company was looted and burnt down during the most recent level 4 lock down .

    Management advised staff to attend a meeting on the 26 July 2021 and was advised and instructed that all staff was put on a lay off and return to work 1 November 2021.

    Staff presented themselves to work and get paid but advised that they would not be paid and would have to claim UIF 19 card and layoff letter on the 4 August 2021 . The company may not unilaterally impose a lay off without pay . There was no consultation process between the company and staff up until the meeting of the 26 July 2021 . Nor was there any discussions on alternatives to lay off .
    Can this be deemed Da Facto dismissal and what recourse do our staff have to refer the matter to the CCMA

    We are part of Sectoral Determination 9 agreement for the Wholesale and Retail Trade . There is no correspondence on Lay Off in the agreement .

    Please can you help us with your recommendations as we have been badly affected by loss of income .

    Thank you and regards ,

    Kevin .

    1. Author

      This is an extremely difficult situation for everyone who has been affected. If you feel you have been treated unfairly, I suggest that you obtain legal advice from attorneys near you who specialise in labour and employment law.

  2. I am an employer. Due to the effects of covid 19 I have put some of my receptionists and cleaners on layoff for six months. Six months down the line the situation has not improved. I want to extend for another six months. What implications will this have.

    1. Author

      You are likely to face difficulties if you unilaterally extend for six months. You should perhaps negotiate an indefinite continuation of the lay-off, but subject to review from time to time.

  3. I’ve been on temporary layoff since April. I was asked to work a few days during lockdown and when I enquired about payment, my boss reprimanded me. Now he has recalled almost everyone except me. I am a manager, but my entire department has been recalled. My employer has even created a new work group, so I am kept completely in the dark.

  4. At what point does lay off become a de facto dismissal.

    I have been laid off since April without any consultation.The company commenced operating in June 2020.

    In addition I have not been approached by the company and although I have sent numerous correspondence it has not been replied too.

    1. Author

      It really depends on the circumstances. In your case it seems that you would have put the employer on terms. I suggest that you approach an expert in labour and employment law for assistance.

  5. I am employed and the above has happened with me. Guesthouse only have the odd guest’s .i was offered lower salary and accepted. But still no time when to return to work. I am desperate. Any advise.
    Anne Stead

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