A government-imposed lockdown can be seen as a force majeure in which an employer is able to implement a no-work-no-pay principle. Nonetheless, employers have been encouraged to pay employees, and government has announced various mechanisms by which employers can seek relief from the impact of Covid-19 so as to pay their employees.
The department of employment and labour has announced that employers that are unable to pay the full salaries of the workers and have had to send them home for their health and safety due to the lockdown are encouraged to apply for the Covid-19 TERS (Temporary Employer-Employee Relief Scheme, previously referred to as the National Disaster Benefit) benefit by sending an email to [email protected]
For small, medium and micro sized enterprises (SMMEs) there are also three schemes of funding that may be applied to:
• Debt Relief Fund;
• Business Growth/Resilience Facility; and the
• Donations from affluent South Africans such as the Rupert and Oppenheimer families, and Patrice Motsepe and affiliates.
Before lockdown started, the UIF urged employers unable to pay full salaries to apply for the Covid-19 TERS benefit by emailing the above address. The labour department says employers are encouraged to apply on behalf of their employees for the process to be faster, and to avoid the fund being overwhelmed by individual applications. It also encouraged employees to report if their employer is not applying on their behalf so it can intervene.
A statement released on April 8 by corporate and commercial law firm Werksmans Attorneys outlined amendments to the directive previously issued in terms of Regulations to the Disaster Management Act 57 of 2002 by the Minister of Employment and Labour.
“The purpose of the directive was to give content to the Covid-19 Temporary Employee / Temporary Employer Scheme. We summarise below the salient aspects of TERS that have regard to the directive, as amended.
“Due to Covid-19 employees may be laid off temporarily and not paid, either fully or in part. While employers are encouraged to pay employees during this period, they are not obliged to do so. Where it is not economically possible for employers to pay employees, either fully or at all, a special benefit fund has been set up under the auspices of the UIF, the TERS.
“A company which has had to close its operations, or a part thereof, for a period of three months or less as a direct result of the COVID-19 pandemic will qualify for a TERS benefit, provided that:
• The company is registered with the UIF;
• The company must comply with the application procedure for TERS; and
• The company’s closure must be directly linked to the Covid-19 pandemic.
“The benefit shall be de-linked from the UIF’s normal benefits and therefore the normal rule, that for every four days worked the employee accumulates one day’s credit, and the maximum credit days payable are 365 for every four years, will not apply.
“The benefit will only be for the cost of salary for employees during the temporary closure.
“The benefit an employee can receive under this scheme will be capped to a maximum amount of R6 730.56 per month per employee. The maximum salary to be taken into account in calculating the benefits will be R17 712.00 per month, and the employee will be paid in terms of the income replacement sliding scale (38%-60%) as provided for in the Unemployment Insurance Act.
“An employer may then top up the benefits for an employee provided the employee does not end up receiving more than 100% of his/her ordinary salary, taking into account any payments received from the UIF in terms of the TERS.
“Employers must apply by reporting their closure via email to [email protected] An automatic response, which has recently been updated, will be generated, setting out the application process. The employer will be required to submit various documents, including a letter of undertaking from the company and a signed memorandum of agreement,” concludes the statement.
In addition, applications will be subject to the fund’s usual verification and validation processes. Where a company can still afford to pay part of a salary, the payout will work in the same as maternity benefits, and TERS will top up earnings to a set sliding scale.
In addition to benefits when an employer closes, if employees are ordered to go into quarantine for 14 days because they have been exposed to someone with Covid-19, the employee will qualify for illness benefits.
Debt Relief Fund
The purpose of the Debt Relief Fund is strictly to assist small businesses that are experiencing financial challenges as a direct result of Covid-19. This fund is not available to assist small businesses that were already in financial stress for different reasons prior to the outbreak of the pandemic in the country. To access the fund, businesses are required to register on the SMME South Africa platform. It requires applicants to fill in the details of their shareholder/s as well as their employee demographics:
• They must be 100% owned by South African citizens
• They should employ at least 70% South African nationals
• They must be registered with Sars and be tax-compliant.
• Priority will be given to businesses owned by females, the youth and persons with disabilities.
The difference between the Debt Relief Fund and the Growth/Resilience fund is that the latter is a soft loan targeted at SMMEs that are manufacturing what could be considered essential goods during the Covid-19 pandemic such as personal protective equipment.
For businesses to qualify for funding, they need to:
• meet the government’s definitions of micro, small and medium enterprises
• meet the turnover threshold for businesses, which in turn depend on the sector in which they operate.
All the categories are in accordance with what was gazetted by the department last year March. Each will be considered on a case-by-case basis, and the onus is on the SMME to prove how its business operations are affected by Covid-19. It imperative that small businesses be tax compliant when applying for these funding.
Rupert, Oppenheimer families and Motsepe donations
President Cyril Ramaphosa announced at the commencement of the lockdown that the Rupert and Oppenheimer families had donated R1-billion each to assist small businesses operations and their employees who have been financially impacted by Covid-19. It is independently administered.
Business Partner’s Sukuma Relief Programme has been appointed administrator to disburse R1-billion from the Rupert Family to small businesses, and is now accepting applications for funding, but apparently it has already been swamped.
The fund is made up of two distinct and separate relief offerings — one for formal sole proprietors and another for other business entities, namely closed corporations, companies and trusts, Business Partners announced in a statement. It will comprise grants and low-interest-bearing loans with a 12-month repayment holiday, while qualifying formal sole proprietors will receive a non-repayable grant of R25 000.
Closed corporations, companies and trusts will be eligible for an unsecured loan ranging between R250 000 and R1-million, with no repayment obligations or interest incurred for the first 12 months, in addition to a R25 000 grant.
To qualify for funding, closed corporations, companies or trusts must be registered, tax- and regulatory-compliant South African businesses that can prove viability prior to the arrival of the pandemic.
When applying, these entities will therefore be required to submit documents and supporting evidence to corroborate that it is a viable business that was impacted by Covid-19. This proof can be a demonstration of a decrease in turnover, erosion of working capital, or inability to pay salaries.
Similarly, formal sole proprietors will need to provide proof of an active bank account to show business activity prior to the outbreak of the pandemic and provide evidence of tax compliance, the Business Partners statement says.
The Motsepe family and associated businesses in turn have also pledged R1-billion. The companies and organisations include the Motsepe Foundation, financial services provider Sanlam, African Rainbow Capital and African Rainbow Minerals. The funds will be used to purchase sanitisers, disinfectants, personal protective equipment and other equipment and resources needed to deal with the pandemic.