A Ray of Light In the Darkness – Casting Light on the Impact of Load Shedding on the Employment Relationship

“It isn’t where you come from, it’s where you’re going, that counts” – Ella Fitzgerald

Article by Ngoni Goba (Senior Labour Advisor)

Introduction

Over the course of the past year, the issue of load shedding has become increasingly concerning, creating numerous frustrations and becoming an indefinite reality. The impact of the constant load shedding has had a devastating effect on a number of businesses, with employers now being faced with difficult decisions in order to mitigate its impact. In this article we will discuss the possible impact that load shedding may have on your employment.

Unilateral Changes to Employment Conditions

As a point of departure, it is important to note that an employer has the right to take measures to ensure the sustainability of its business, in line with its operational requirements, provided that same is not done unilaterally and is done within the precepts of the law.

The employment relationship is regulated by the employment contract, which sets out the reciprocal obligations that are binding on both the employer and the employee. As the agreement is reciprocal in nature, neither party may unilaterally change the terms of the agreement.

In the matter, Mazista Tiles (Pty) Ltd v National Union of Mineworkers (JA52/02) [2004] ZALC 16 (22 July 2004) and the Labour Appeal Court (LAC) held at paragraph 48 of the judgment, that, “An employer who is desirous of effecting changes to terms and conditions applicable to his employees is obliged to negotiate with the employees and obtain their consent. A unilateral change by the employer of the terms and conditions of employment is not permissible.”

The reciprocity of the relationship is illustrated in its simplest form, in that there is an obligation for an employee to render their services to the employer, while the employer is obliged to pay the employee for such services. In the context of the country’s current load shedding crisis, what then becomes of a scenario where the employee tenders their services however is unable to attend to their normal duties as a result of the load shedding?

Principle of “No Work, No Pay”

There is a commonly held view that when employees are unable to render their services, the principle of ‘no work, no pay’ would find application. The view appears to have been formed by the Labour Court (LC) in Macsteel Service Centres SA (Pty) Ltd v National Union of Metal Workers of South Africa and others (JA 483/20) [2020] ZALCJHB 129; [2020] BLLR  772 LC; (2020) 41  ILJ 2670 LC (3 June 2020) where the court held at paragraph 82 of the judgment, that: “The reality in law is that the employees who rendered no service, albeit to no fault of their own or due to circumstances outside their employer’s control, like the global Covid-19 pandemic and national state of disaster, are not entitled to remuneration and the Applicant could have implemented the principle of ‘no work, no pay’.”

From the above judgment, we can deduce that there is no legal obligation on the employer to pay an employee who has not actually worked, regardless of whether the failure to render the services was the employee’s fault, as the concept of “no work no pay” would be applicable. This position is incorrect in the case of load shedding.

The Practical Application of Load Shedding

An employment contract consists of reciprocal duties between the employer and the employee. It would therefore, follow that the normal rule is that where an employee presents themselves at the employer’s premises to render their services, and they are unable to do so on account of the load shedding, the employer would still be obliged to remunerate the employee.

The obligation to pay is not dependent on any work actually being performed. This normal rule, however, may have a practical exemption, if the reduced working hours are consulted on and an agreement is concluded, the employer may pay the employees for the actual hours worked.

Therefore, there is a duty on the employer to find alternative work for the employees to do during the load shedding hours; for example, arranging shifts to accommodate the load-shedding schedule, offer employees training or staff meetings, or the carrying out of other duties that may not require the use of electricity; unless an alternative agreement has been reached.

Conclusion

In order to mitigate the impact of the load shedding, it would be prudent for an employer to engage in a joint consensus seeking process with the employees and arrive at a mutually agreeable solution or to explore other avenues provided in terms of various applicable bargaining council collective agreements such as short time.

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