The law firm Cliffe, Dekker Hofmeyer published a very relevant brochure titled A “workplace” on fire: What to do with your employees.
This document discusses the rights and obligations of both parties in situations like the tragic violence besetting the country and is available for download by clicking on the link above and sharing with clients. We suggest that you study the full document and not rely on the summary below, which is merely a guide to the contents of the brochure.
In response to the current civil unrest taking place in South Africa, many businesses have had to close operations out of fear of attacks and to ensure the safety of their employees. Some employees have also been unable to reach their places of work as protestors disrupt entries and exits from communities. In this article, we examine the impact of this on employees and explore what recourse is available to an employer who is forced to unexpectedly close its doors.
- An employee may justifiably refuse to attend an unsafe workplace until it is safe to go to work again. That would be a valid tendering of services.
- South African courts have ruled on instances where an employer ceases to trade because of economic hardship, and where it does so as a result of a force majeure event. Economic hardship is not a valid basis to excuse an employer from paying salaries.
- In relation to a supervening impossibility, or force majeure, our courts have held that a temporary impossibility neither terminates an obligation nor gives rise to a right to terminate an obligation. It merely temporarily suspends the duty to perform the obligation while the impossibility continues.
To circumvent the financial strain of a company having to pay its employees full pay for work not done, at no fault of the employer or the employee, employers and employees may need to conclude a temporary lay-off period in a scenario where the company is struggling to pay its employees due to an unexpected event. The agreement can stipulate that the period of this agreement can continue until such a time that the employer is able to pay its employees. Where possible, employers should enter into an agreement regarding shorter working hours and less pay. The Basic Conditions of Employment Act prohibits deductions without mutual consent but allows for less pay for fewer hours worked. In addition, employers should invoke annual leave until it is able to resume operations.
To the extent that an employee’s services will not be needed for the foreseeable future, the employer could initiate a retrenchment process, basing it on operational requirements, in terms of the Labour Relations Act 66 of 1995.
CDH Employment Law Department