AN EMPLOYMENT LAW DILEMMA
Load shedding is a cause of much frustration for each and every household and business across the country.
One of the issues relating to this is the duties of employers towards their employees during periods of load shedding.
A contract of employment is a legal agreement in terms of which an employee will tender his/her services and, in turn, the employer will remunerate him/her for this. The fact that an employee is unable to perform the actual services, due to circumstances beyond his/her control, does not unburden employers from their legal obligation to pay an employee where such an employee has tendered his/her services.
The Basic Conditions of Employment Act (BCEA) does not make provision for a so called short time arrangement in terms of which employees may be sent home due to work shortages or unforeseen circumstances. Even though some bargaining council agreements do have a provision of this nature, the majority of employers are left to their own devices.
Employers may of course engage their employees in an attempt to reach an agreement on ways to manage the situation. This agreement could include a short time provision, changing of shifts structures or changing of working hours. It is, however, of paramount importance to note that an employer cannot unilaterally change an employee's conditions of employment and that consent from the employee concerned is always a requirement.
Should employees refuse to agree to any of these changes to conditions of employment, the employer may have to consider implementing retrenchment procedures in terms of Section 189 of the Labour Relations Act. Employers are however advised to enlist professional assistance should they wish to pursue this route as this procedure is extremely technical and each case will have to be judged on its merits.
The last mentioned course of action is only recommended in instances where no alternative tasks are available to employees during periods of load shedding, substantial losses in productivity are incurred and employers therefore suffer financial damages.
Should you have any queries in this regard, NEASA members may contact our hotline on 086 016 3272.
NEASA LEGAL DEPARTMENT