The implications of electricity outages for the principle of work, no pay in South Africa

Abstract

In South Africa, the advent of electricity outages, colloquially known as load-shedding, has affected every sector. It has had severe implications for businesses and labour alike. It has presented an unprecedented problem for labour relations. In particular, the problem has affected the longstanding principle of no work, no pay. This principle has formed the core of labour law in South Africa since time immemorial. In terms of this principle, the employee is only entitled to receive their salary for the services rendered to the employer. However, the advent of electricity outages has presented a situation wherein the employees come to work, but due to circumstances outside their control, namely the intermittent supply of electricity, they cannot tender their services to the employer. Thus, it raises the question of whether the employees are entitled to receive their salary in these situations. While the principle of no work, no pay may seem straightforward, where the employee chooses not to present himself or herself for work. It often brings complications in no-fault situations. Hence, there is a need to research this principle in the context of electricity outages. Since no direct legislative framework regulates it, it becomes necessary to develop the common law on the principle and the ancillary case law applicable to such circumstances. A key finding of this study is that there is no direct case law dealing with a situation of no work, no pay in a no-fault situation, such as in the case of an electricity outage in South Africa. Therefore, it is imperative to use derivative jurisprudence to make recommendations and a possible conclusion to the study. The MacSteel and Mhonipheni decisions are two derivative court cases that can be cited in this case. While these two decisions are relevant to the COVID-19 pandemic and the implementation of the no work, no pay principles, the reasoning laid out in them can apply to the study's subject matter. This is because, while they may appear to be contradictory in the sense that one may be considered the general norm, MacSteel, for example, with minor alterations, could be considered the exception to the general rule. The exception should be slightly modified in that the employer must have taken reasonable steps to guarantee that he is in a reasonable position to accept the employees’ services.