Do you have to pay your employees during load shedding?

Commercial law firm, Werksmans Attorneys, has published information about how employers should deal with employees and the loss of productivity as a result of load shedding.

The legal firm says that many employers are under the impression that when employees are unable to work due to load shedding the ‘no work, no pay’ principle applies.

“This is not the case,” the firm said.

“Our common and labour laws are clear – if the employer expects the employees to be at work at a specific time and on a specific day and the employees comply with these requirements, the employer is obliged to pay them for that time.”

“This is regardless of whether the employees were able to perform their duties or not.”

But this does not mean that employees get a free pass and employers must bear the burden and simply pay up, as there are ways for employers to minimize the impact of these outages on labour costs.

According to Werksmans, a strategy available to some employers is to rely on agreed procedures that apply to interruptions of production – such as those seen in the metal and engineering industries.

It is important that employers and employees understand the serious implications load shedding has on both sides

These industries have come to an agreement with employees on how to deal with power down time – specifically by differentiating between planned and unplanned load shedding.

  • Unplanned load shedding is where Eskom cannot with complete certainty inform the public of exactly when load shedding will be implemented (what Eskom does rather, is inform us of the likelihood of when load shedding may be implemented).
  • Planned load shedding is load shedding that occurs at a pre-determined and publicised time and date.

In terms of the agreement (and similar contract), where the circumstances are unforeseen or unplanned (such as unplanned load shedding) employers may:

  • Elect to send the employees home, provided they shall receive not less than four hours’ work or pay in lieu thereof; or
  • Expressly instruct employees sent home to return, where the employer believes work can be resumed, provided the employees shall receive not less than four hours’ work or pay in lieu thereof.

Werksmans points out that most load shedding is unplanned, however, often hitting at random times, and moving to different stages.

For most employers, this is highly disruptive, and often ends up with with employees getting sent home, paid for 4 hours of work, even if there was no work done.

Other issues that arise relate to workers having to work overtime to make up for lost production (and employers incurring overtime fees), and also cases of ‘misconduct’ (such as arriving late) as a result of load shedding.

“It is clear that load shedding will be with us for some time to come. Employers must be cautious not to contravene labour law requirements during these periods in an effort to reduce the consequences of load shedding,” the law firm said.

“It is advisable that employers negotiate a plan to minimise its effect with employees…employers may also have to be flexible – perhaps using the load shedding times for training or staff meetings.”

Werksmans said it is possible to negotiate an employment contract around remuneration and load shedding (such as suspending pay when it strikes), but this cannot be implemented unilaterally if not accepted by employees.

“If employees do not agree to changes in working hours, shift structures, pay or any similar measure designed to relieve the burden on employers during load shedding, the employer may be forced to implement retrenchment procedures in terms of sections 189 or 189A of the Labour Relations Act 66 of 1995,” Werksmans said.

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Do you have to pay your employees during load shedding?