No pay unless Eskom is to blame

Sian Wilkens. © Unknown.
Sian Wilkens. © Unknown.

Lavery Modise and Sian Wilkins

Lavery Modise and Sian Wilkins

The most fundamental duty of an employee is to tender services to an employer.

The obvious corresponding duty of an employer is to remunerate the employee.

An employee who fails or refuses to tender services in terms of his contract of employment is not entitled to be remunerated and hence the well-known principle of "no work no pay".

However, the question arises about whether the "no work no pay" principle can be applied when an employee is precluded from performing work as a result of circumstances beyond the employee and his employer's control.

For example, can an employer refuse to pay his employees for those hours that his employees were unable to perform work as a result of a power cut?

The simple answer is no.

An employee's right to be remunerated arises not from the fact that the employee has actually performed the work, but rather from the fact that the employee has made himself available to perform work.

An employer is still obliged to remunerate an employee if the employee was unable to work as a result of circumstances beyond the employee and his employer's control.

In the event that an employer refuses to pay an employee for the time during which the employee was precluded from working, the employee is entitled to report the matter to the department of labour or alternatively sue his employer for breach of the contract of employment.

A related question is whether an employer can require an employee to work overtime as a result of time lost due to circumstances beyond the employee and his employer's control.

For example, if power cuts add to 11 hours in one week, can an employer force his employees to work 11 additional hours in the week?

The working of non-contractual overtime is voluntary. Employees cannot be forced to work overtime.

In addition, in terms of the Basic Conditions of Employment Act, overtime may not exceed 10 hours a week and the total working hours (including overtime) in a day may not exceed 12 hours.

However, with reference to section 6(2) of the Act, employees are obliged to work overtime relating to "work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work".

While the "no work no pay" principle is embedded in our labour law, it's clear from the above that an employer is ultimately the one who "pays" for "no work" done as a result of circumstances beyond his control.

l Lavery Modise is the director and Sian Wilkins an associate at Routledge Modise Attorneys

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