We have had several queries from employers relating to payment following on from the recent protest action in Durban on 6 June 2016.
1. Am I required to pay my employees if they did not come to work and/or could not get into the premises as a result of the protest action?
The answer to this question lies in the common law obligations of both employer and employee. As the employer, when you enter into an employment relationship, you have a common law obligation to pay the person the wage/salary that was agreed to. The employee, by virtue of the agreement, has a common law obligation to place his/her services at your disposal. In the event of protest action the inability for the employee to place his/her services at your disposal is through no fault of their own and you are therefore obliged to uphold your obligation in terms of payment.
It must also be noted that the concept of “no work, no pay” is only applied in a situation where an employee has elected not to place their services at your disposal.
2. In the event that protest action becomes a regular occurrence, what is expected of me in terms of payment for days not worked?
Employers would need to negotiate a solution and therefore a new “agreement” otherwise they are still obligated to pay the employee the agreed salary/wage. A suggestion is to look at negotiating a special “protest” fee, i.e. where there is valid protest action occurring, employees only get paid for 2 hours or agree to work in the time on another day.
3. What do I do if an employee claims they cannot appear at work because of the protest action, but I think they are just making an excuse?
You would need to be able to prove that the employee could have been able to come to work. For example, if the employee lived in Umdloti and did not have to travel through any affected areas then you would have a reasonable expectation that the person to come to work. Provided you can, on a balance of probabilities, prove a wilful intent not to come to work, you can discipline and apply the “no work, no pay” rule.
With the municipal elections coming up and given past experience, we would expect these types of disruptions to become more common place.
If you would like assistance in working through an agreed approach with staff, we would be happy to assist.