Load shedding is having a devastating impact on businesses. Questions that typically arise are: Do employees have the right to be paid if they are unable to work during power outages, and may employers change working hours to fit in with load shedding schedules? In this article, we will revisit the relevant principles again to make sure they are aligned with current acceptable employment practices.
- The normal rule is that the employer has an obligation to pay if the employee makes his or her services available to the employer. The obligation to pay is not dependent on any work actually being performed.
- The employer, therefore, has an obligation to pay even if the employee’s services cannot be utilized due to circumstances beyond the employer’s control, such as during load shedding.
- If the nature of the contract is such that the employee is not paid for making his or her time available to the employer, but rather for producing a certain result (e.g. commission earners), then the employer’s obligation to pay only arises once that result is delivered. Similarly, if the employee is appointed on an “as and when the need arises” basis, then the employer will only have an obligation to pay if the employee has already been called upon to work and the power outage then occurs during the time that the employee has agreed to work.
- In order to override the normal rule, an employer can enter into an agreement with its employees that the obligations of both parties be suspended for any period during which performance becomes impossible due to circumstances beyond the control of both parties. The employer can also seek to reach an agreement with employees to change or reduce working hours.
- Some Bargaining Council agreements have provisions dealing with the consequences of impossibility of performance, in which case it will prevail over the common law position (par 1 above) or any agreement between the employer and its employees.
In short, employees are normally entitled to payment during a power outage. However, employers can enter into various contractual arrangements with their employees to mitigate the situation.