We as South Africans have had to endure up to Stage 4 load shedding in recent weeks and there are plans for the implementation of Stage 5 and Stage 6 load shedding.
It is safe to assume that load shedding may be an ongoing and regular occurrence in South Africa over the next couple of months as the embattled power utility struggles to meet its demands in light of supply shortages and disrepair.
As an employer this makes running a business extremely difficult.
Unfortunately employers may not apply the ‘no work no pay principle’ unless provision has been made in the employment contract or in the main agreement for the implementation of short time during load shedding. If employees present themselves for work, they must get paid. This stems from the common law principle that an employee is entitled to payment when they tender their service, and not depending on whether there is work for them to do or not.
One option would be to plan around scheduled load shedding and arrange with staff to maximize productivity during the hours that electricity is available. This could entail adjusting employees’ hours of work so that they start work later or earlier to avoid load shedding. Such arrangements however need to be made with the consent of the employees involved or their representative trade unions, and cannot be adjusted unilaterally.
If short time during load shedding is provided for in the employment contract or collective agreements, depending on what the clause specifies, the ‘no work no pay’ principle may apply and employees may be sent home during load shedding. This is however based on the proviso that if an employee is sent home for the day, they would still be entitled to a minimum of 4 hours’ wages irrespective of whether the employee worked less, as per the amended Basic Conditions of Employment Act.
Alternatively employers can try and reach an agreement with their employees to add short time during load shedding as an annexure to their existing contracts. This can only be done if an agreement in writing can be reached.
If no such agreement can be reached with employees, employers may have no other option but to resort to restructuring or retrenchment procedures in terms of section 189 or 189A of the Labour Relations Act, in order to alter their operations based on legitimate economic, technological or structural reasons.
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