Employers’ duties during lockdowns and blackouts

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WHEN IT’S UNLAWFUL TO WORK

Itissubmitted thatthecourt’ s approach was correct in law.

In terms ofSouth African common law contractual provisions, theprinciple of impossibility ofperformance on the part of the employer is, in effect, limited.This is because, ifemployees tender their services, anemployer is obliged to pay the employee’ s remuneration, notwithstanding that the employer cannot provide them withwork to do due tosome external factor or circumstance.

Impossibility on the part of the employerwould only arise ifthe employerwas objectively unableto lawfully provide work.However, in this case, due to the operation of theDMA Regulations, employees werelegally prohibited fromworking and thus tendering their services.

Accordingly, the employer was notlawfully permittedto accept such an unlawful tender and had no legal obligation to pay the employee. This decision by Van Niekerk J accords with the advice we provided toclients atthe time.

NEVERTHELESS, THE ISSUE REMAINS RELEVANT DURING THE ERA OF LOAD-SHEDDING

The above principle only applies during the hard lockdown period whenperformancewas legallyimpossible. Thereafter, most employees werethen entitledto tendertheir services,and arguably,if theydidtender suchservices, anemployer would have beenrequired to pay themeven ifthat employerdid nothavework for the employees to do. Difficultyor operationalchallenges in running a business does not result in legal impossibility of performance.

Nevertheless, theissue remainsrelevant duringthe eraof load-shedding.If employeestender theirservicesto anemployer, butthe provisionof workbythe employer is not possible due to load-shedding, is there an obligation to pay them?

There is no doubt that this issuewill becanvassedin future decisions.