Under the milieu of the South African economic landscape, electricity power cuts by Eskom as well the imminent water restrictions by government, are issues that we face and will continue to face. Power outages and water restrictions in the workplace do have a detrimental impact on the employer as well as the employee and therefore it is essential that employers are aware of their legal duties towards employees as well as their rights in order to mitigate the effects.
Legislation and practical solutions in terms of Common Law
Since power outages and water restrictions affect production, employers are normally under the incorrect impression that employees are not to be remunerated when they are not working or there is no production. Since the employment relationship is one which is contractual in nature and because the employer expects an employee to be at work, when the employee does report for work, then ipso facto the employee therefore upholds his/her contractual duties and would be entitled to remuneration. The reality therefore is that the employer is obliged to uphold their duties notwithstanding circumstances that may even be beyond the employer’s control.
Should an employer operate under the scope of The Metal and Engineering Industries Bargaining Council (MEIBC), Section 7(2)(b) of the main agreement provides that an employer may implement short time as a result of justifiable contingencies which includes but not limited to planned load shedding.
An employer, who operates outside the scope of the MEIBC, may implement lay off measures if agreed to. Such measures can be applied as follows:
- If the employee reported to work at the employer’s request and no work had been done, the employee must be paid for only 2 hours worked.
- If worked stopped after the first 2 hours, the employee will be paid for only the only hours they had worked.
- If work stopped during the first 2 hours, the employee will be paid for 2 hours only.
- However, if the employee was informed not to report for work the day before and the employee still reported for work, then the employee will not be entitled to any remuneration.
The employer may adopt further practical ways to mitigate the effects of load shedding such as instructing staff to take their lunch breaks during load shedding or when there are water restrictions. Employers, however, must be cautious not to breach Section 14 of the Basic Conditions of Employment Act (BCEA) which states that an employer must pay an employee for a lunch break that exceeds 75 minutes.
The unfortunate reality is that power outages and water restrictions are challenges that South African employers will be facing for some time to come. Employers are therefore encouraged to comply with the requisite labour law principles and also uphold their contractual obligations but at the same time be aware of their rights and the avenues available to mitigate the effects thereof.
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ABOUT THE AUTHOR
Linden Bowes is currently a SEESA Labour Legal AdvisorHe obtained his LLB from the University of Kwazulu Natal and then completed his articles at Kuboni Inc. He was admitted as an attorney in 2011 and had later joined the firm Livingston Leandy as an associate.