Can your boss dock your pay because of load shedding? Here’s what the law says

With never-ending load shedding becoming a part of our lives for the foreseeable future, many employees are worried about their jobs and possible reduced income.

The recent announcement of the implementation of daily load shedding can have severe implications for business and labour relations, according to Jacques van Wyk, director and Michiel Heyns, senior associate at Werksmans Attorneys.

They say employers and employees should know their rights and duties during these periods of interrupted power supply.

“Employers need to ensure they comply with labour law requirements while at the same time implementing measures to reduce the negative impact that load shedding has on their businesses.

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Obligations of employees and employers during load shedding

“Many employers are under the impression that when employees are unable to work due to load shedding the ‘no work, no pay’ principle applies, but this is not the case.

“Our common and labour laws are clear that if the employer expects 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 regardless of whether the employees were able to perform their duties or not.”

The employment contract is a reciprocal agreement and employers must pay employees if they do the work or put their product capacity at the disposal of the employer, Van Wyk and Heyns say.

“The duty to pay and the corresponding right to remuneration do not arise from the actual performance of the work, but from the tendering of service or productive capacity.”

This means that if you offer to do the work and your employer does not want you to work or cannot provide work due to load shedding or any other reason, your employer is still obliged to pay your wage or salary.

“Your employer is, therefore, obliged to perform even when you are unable to perform due to circumstances beyond the employer’s control.”

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They say some employers may wish to treat these stoppages as meal intervals to reduce the losses associated with stopping work during load shedding, but the problem with this approach is not only that the break in supply of electricity may last several hours but also that, in terms of Section 14 of the Basic Conditions of Employment Act, an employer must pay employees for any lunch break longer than 75 minutes, unless the employee lives on the premises.

Van Wyk and Heyns say a better strategy available to some employers is to rely on agreed procedures that apply to interruptions of production, such as in the metal and engineering industries.

Bargaining council rules about load shedding

The Metal and Engineering Industries Bargaining Council Main Agreement differentiates between planned and unplanned load shedding.

Unplanned load shedding is, for example, where Eskom cannot with complete certainty inform the public of exactly when load shedding will be implemented. Planned load shedding is load shedding that occurs at a pre-determined and publicised time and date.

In terms of Section 7 of the agreement, an employer can implement “short time owing to a shortage of work and/or materials and any other justifiable contingencies, including planned load shedding and/or unforeseen contingencies and/or circumstances beyond the control of the employer”.

In unforeseen or unplanned circumstances, such as unplanned load shedding, the employer can choose to send employees home, provided they receive not less than four hours’ work or pay or expressly instruct employees sent home to return, when the employer believes work can be resumed, provided the employees receive not less than four hours’ work or pay for that.

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The agreement provides that “[w]here the employer does not implement short time in response to a planned or foreseen load shedding and the employees report for work but are sent home by the employer, they will be entitled to 8 hours payment in respect of such day”.

Unfortunately, Van Wyk and Heyns say, most load shedding is unplanned with Eskom only announcing its implementation a few hours before it commences or changing it from stage 1 to stage 2 at some point during the load shedding period.

“This may be very disruptive for employers and especially onerous on employers in the large metal and engineering industry who are subject to the agreement. An employer can implement short time, expecting load shedding to start on a specific day and if the load shedding does not go ahead, the employer is left with minimal staff capacity.”

In addition, if load shedding is implemented unexpectedly or its level increases, it leaves the employer with little choice but to send employees home, paying them at least four hour’s wages although they may not have worked at all.

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What happens during load shedding in other industries?

Not all industries have an equivalent of the agreement and Van Wyk and Heyns say that for those employers who do not fall within the scope of the agreement, the choices are not easy.

Another question that arises during load shedding periods is how much must employees be paid if they need to work past their normal work hours to make up for the hours lost during the day. 

According to the Act, any work performed after normal hours to catch up production will be regarded as overtime and will be subject to additional, overtime pay, but employers and employees can agree to changes in working hours or shift structures to reduce the financial losses caused by load shedding.

They also point out that it is not compulsory in terms of the Act to work overtime, but circumstances, such as operational requirements caused by load shedding, can warrant the extension of working hours.

“An employer can require employees to start work later than usual and finish later than usual, but an employer may not unilaterally implement new working hours and in most cases employees must agree to such changes.”

What about payment for hours not worked. Van Wyk and Heyns say that the employer and employee can agree in the employment contract that payment will be suspended during load shedding, but the difficulty with this is that employees will have to agree to such terms.

If employees refuse, these changes cannot be implemented unilaterally.

“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.”

The employer would have to follow certain steps and show that due to operational requirements brought about by load shedding a given number of employees must be retrenched.

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Other challenges during load shedding

Another load shedding problem for employers is dealing with what might otherwise be considered to be misconduct by their employees, such as late coming.

Van Wyk and Heyns warn that employers must be cautious and understand that exceptional circumstances exist during load shedding.

Late coming due to load shedding, for example, must be managed and employees counselled on how to work around the impact of load shedding on travel, traffic and daily life.

“On the other hand, employees are also under an obligation to take the appropriate steps to reduce the potential problems that arise during load shedding periods, such as increased travelling time or less time available during normal working hours to complete tasks.”

As 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, they say.

Their advice is that employers negotiate a plan to minimise its effect with employees.

“For example, where load shedding is planned for the beginning or end of a shift, the times of the shifts could be amended to ensure there is no loss of work time.”

Employers may also have to be flexible and perhaps use the load shedding times for training or staff meetings.

“It is important that employers and employees understand the serious implications load shedding has on both sides of the employment relationship and engage in meaningful consultation to ensure the least disruptive outcome is achieved.”