“Load shedding, riots, floods and COVID”

With South Africa continuously experiencing various forms of work interruptions, employers must navigate more and more carefully through the vast labour laws in ensuring to get the required productivity and output from staff, whilst ensuring not to overstep boundaries, but to what extent and where can one do what, legally.

The following are common work interruptions that employers regularly face these days:

• Load Shedding and Power Outages

• Riots and strikes, Natural disasters, and recent floods

• Continuous absenteeism (due to ill health) and isolation

1.     Load Shedding

The term ‘load shedding’ first started dominating the South African landscape in 2007, when the country’s national electricity utility, Eskom, announced that it was unable to supply power to the entire country at the same time. Since then, we saw loadshedding increasing year on year and the ‘no work no pay’ principle was quickly implemented. With this being said, the Unions and Employees did not agree as it should be noted that in terms of our common law and the Basic Conditions of Employment Act 75 of 1995, as amended (“BCEA”), an employment contract is reciprocal. In other words, the parties to the contract, being the employer and an employee, agree that the employee will work for the employer and in return, the employer will remunerate the employee accordingly.

It follows that if the employees tender their services, the employer is obliged to pay the employees, irrespective of whether the employees were able to perform their duties. The employer’s duty to pay the employees is not subject to actual performance of the work, but from the tendering of services.

In consideration of the above, if the employees offered to do the work and/or tendered their services, and the employer could not provide work due to load shedding, the employer is still obligated to pay the employees their remuneration. Therefore, if the employees leave the workplace, as instructed by the employer, they would still be entitled to their full remuneration. One can however overcome this, by ensuring your employment contracts are updated to reflect and address the issue of power outages. Furthermore, collective agreements and short time would also assist in regulating the time off work when it is required.

1.     Riots and Strikes, Natural Disasters, and recent floods

With the above being said; we see ample times that employees either refuse to come to work or alternatively can’t come to work due to being ‘stuck’ at home due to riots, strikes and recently the floods in KZN. In this sense the reverse effect of the above comes in play and the employee is not tendering work, thus no need to remunerate the employee if they fail to come to work. We however as responsible employers, need to seek ways to assist our staff to come to work, and various companies had tried to make a plan for staff to come to work, by offering lifts from the various areas or alternatively changing the hours of work to avoid peak hours; however, if a staff member fail to come to work, albeit riots, strikes or natural disasters the employer is not obliged to pay staff.

2.     Continuous absenteeism (due to ill health) and isolation

The current reality of COVID and employees being re-infected, and further isolations taking place, the question posed is “when is enough enough”? An employee has a duty to render service in terms of the contract of employment and should the employee be unable to do so due to ill health, the employer is entitled to terminate the contract. It is often referred to as one of the no fault dismissals, the other being retrenchments.

Although employees have a right to paid sick leave, that right is open to abuse, which may be difficult to prove if a compliant doctor issues medical certificates on request. AECI Explosives Ltd (Zomerveld) v Mambalu illustrates the lengths to which employers may have to go to defend dismissals of such employees. In this case, Mr. Mambalu had a poor attendance record for two years before his dismissal.

In the final year he was counseled but lapsed again on three occasions for a total of eight days. The employer noted that there was a pattern of such absences on sick leave taken before and after weekends and relied on a 'time-keeping' rule that permitted dismissal in cases when employees were frequently absent due to illness. The industrial court held that Mambula's dismissal was unfair because the employer had conceded the authenticity of the employee’s medical certificates, and that it should accordingly have treated the case as one of incapacity.

The Labour Appeal Court disagreed. It held that the dismissal was substantively fair because Mambula had proved himself totally unreliable. The court also held that in cases involving repeated short absences due to ill-health warnings are sufficient and a formal medical inquiry is unnecessary.

Employers are required to follow fair procedures when handling cases of absenteeism. Employees charged with absenteeism must generally be given an opportunity to state their case via a disciplinary enquiry. Through this, one can determine the extent of the employee’s reliability and ability to come to work, and from here the appropriate decision can be made.

Conclusion

What should companies then do to run a productive business with no staff? Honestly speaking, employers need to tread carefully when implementing a strategy to really support staff as responsible employers but still try and secure productivity – “what is ultimately best for the business”. One need to apply rules across the board in a consistent manner and perhaps take some of the learnings from the lock down in working from home? We have seen a lot of companies utilizing hybrid models of working from home and coming through to the office, which has truly been very fruitful and assisted in staff morale.

With South Africa being a 3rd world country, and tech not really reliable due to the infrastructure, power outages etc, are we really ready and geared to operate as a 1st world country?

In my opinion, most definitely – with the right business partners and technology on your side we most definitely can.

For more information or assistance with your human capital during these difficult times contact us on info@grokon.biz

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