What the law says about bosses cutting pay because of load shedding in South Africa

[Nat Quinn]

Legal practitioners have been asked whether an employer can dock employee pay as a result of being unable to work due to load shedding.

Legal firm Wright Rose-Innes said that the primary duty of the employer is to pay the employee regardless of whether the employee performs on a particular day or not as a result of load shedding or any other reason beyond the employee’s control.

However, in turn, an employee has the duty to place their personal services at the disposal of the employer, the firm said.

Under an employment contract, the parties are generally free to regulate their respective rights and duties in the contract, subject to the requirements of the law.

“For example, the parties could agree that the payment of an employee’s salary may either be daily, weekly, fortnightly or monthly, in cash, by cheque or by direct deposit into a bank account designated by the employee.”

In terms of section 34 of the Basic Conditions of Employment Act 75 of 1997 (“BCEA”), deductions from an employee’s salary, for whatever reason, are prohibited unless the employee has agreed in writing to the deduction in respect of a specified debt, or unless deductions are required or permitted in terms of a law, collective agreement, court order or arbitration award, said Wright Rose-Innes.

Despite this, deductions may be effected to reimburse employers for loss or damage caused by employees in the course of their employment, but only:

• With the employee’s consent;

• If the loss or damage was due to the employee’s fault;

• If the employer has given the employee a reasonable opportunity to show why the deductions should not be made;

• If the total amount of the debt does not exceed the actual amount of the loss or damage or one-quarter of the employee’s salary in money.

If an employer was to contemplate docking an employee’s salary without the employee’s consent, regardless of the amount, it would be in violation of the law (section 34 of the BCEA), and the employee could declare a dispute.

If an employee earns below the ‘earnings threshold’ of R224,080 per year as of 1 March 2022, they may refer a dispute to the CCMA, said the firm.

Employees that earn above this threshold may institute a claim concerning the failure to pay their salary, or part thereof, in either the Labour Court, the High Court or, subject to their jurisdiction, the Magistrates Court or the Small Claims Court.

“Should an employer wish to dock employee salaries due to load shedding, the employer will first have to obtain their employees’ written consent before they can dock their salary and cannot implement such a decision unilaterally.”

Should the employee refuse to consent to this arrangement, employers may consider placing employees on short time or aligning their operating times or working hours to load shedding schedules.

As a last resort, employers may also consider the retrenchment of employees due to operational requirements, the impact of load shedding and the need to keep the business running, Wright Rose Innes said.

What the law says about bosses cutting pay because of load shedding in South Africa (businesstech.co.za)

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