The incessant and repeated introduction of various levels of Loadshedding, often without much notice, has some severe consequences for businesses. Not of which is the uncertainty of whether Employees are to be paid for the hours of Loadshedding as this could surely not be expected of the Employer if they are not in control of working hours when Loadshedding rolls around.
The question, however, becomes whether employers are responsible for paying employees during hours of Loadshedding.
Responsibilities of employers and employees throughout the persistence of the Employment Relationship
Many employers are under the assumption that if employees cannot work during hours of Loadshedding, the well-established principle of “no work, no pay” would apply. This is incorrect, however, in that when an employee reports for duty in terms of their employment contract, they are entitled to compensation for their service whether they can perform them or not. The entitlement to compensation is elementarily based on the employee’s tendering of their services. Thus, where employees are available to work, but the employer cannot provide the employees with work due to loadshedding, the employer is still obliged to pay the employees concerned.
Some employers may elect to implore or agree with staff members to take their lunch times during the hours of Loadshedding. This is problematic because employers are obliged to pay employees whose lunch hours go beyond 75 minutes, Section 14 of the Basic Conditions of Employment Act 75 of 1997 (“BCEA”). Currently, Loadshedding is scheduled in excess of two hours.
Another alternative is to implement short time because of the unforeseen breaks in production. However, this may only be done with an agreement between employers and employees in the absence of collective agreements such as the Metal and Engineering Industries Bargaining Council Main Agreement, which establishes clear guidelines about planned and unplanned loadshedding. During this period, employers are left with the option of implementing short time to ease the burden of loadshedding bearing in mind employees are not to receive less than four hours payment for the specific day they were not able to work due to loadshedding.
For all other employers, the options are rather limited, as they may not implement measures such as short time or “no work, no pay” unilaterally. They will be forced to reach an agreement with employees to possibly withhold payment during Loadshedding hours, whether it be via short time of merely an agreement to same.
The last resort for employers if employees do not agree to the above is to initiate retrenchment proceedings in Section 189 of the Labour Relations Act based on operational requirements to soften the burden on employers. Employers may then elect to employ candidates with the caveat that remuneration will not be paid during the hours of loadshedding, essentially creating the aforementioned agreement. This option should be very carefully considered and investigated to proceed in the most viable manner possible in consideration of the rights of employees and the impact on their remuneration and working roster.
In Conclusion
Although it may be a harsh reality for employers to accept, the fact remains that employees are entitled to payment during Loadshedding in the absence of any agreement to the contrary. With Loadshedding being as sporadic as it currently is, and with no end in sight, it behoves employers to consult with employees to attempt to reach a collective agreement for the hours of loadshedding and to implement conditions of employment for new Employees to ensure the longevity and clear parameters around employee’s responsibilities, rights and remuneration during loadshedding.
Want to know more about the impact of loadshedding on your business? Contact your nearest SEESA Labour Legal Advisor. Alternatively, leave your details on our website, and a SEESA representative will contact you.
About The Author:
Jacques Kitshoff started his career at SEESA in 2016 at the SEESA Aliwal North branch. He is currently a Labour and Consumer Protection Legal Advisor at the SEESA Bethlehem branch. Jacques obtained his LLB Degree in 2014 and was admitted as Attorney in 2019.
Resources:
- Basic Conditions of Employment Act 75 of 1997;
- Labour Relation Act 66 of 1995.