Payment of Employees during Loadshedding

With South Africa in the midst of the worst loadshedding it has seen to date and the outlook being that this will not be resolved in the coming months, it has become necessary to revisit the issue of the impact which this has on business.

It is trite that many businesses cannot provide its full services, however restrictive labour legislation ensures that the employees of such businesses retain the right to be paid for their services, despite such employers not necessarily being able to justify the expense of its full labour force.

An interesting article on businesstech sought to answer one dimension of this question (Read the Article Here), however it fails to address some of the options which may well exist and looks only at the issue of deducting moneys from an employee’s pay.

While the opinion of legal firm, Wright Rose-Innes, is noted, there are some aspects which they did not answer and more importantly, some key points of difference which I may have. Key here is where the article states:

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.

This is not necessarily true and one must first determine the true nature of an employment contract. It is well established in case-law that an employee has a fundamental duty towards the employer to render service, hence the concept of no-work-no-pay coming into effect. Only once the employee has rendered his/her service does an obligation is incurred on the part of the employer to pay the employee for his/her service. It therefore follows that, where such an employee fails to meet this obligation, the employer is relieved of any commensurate obligation to pay such an employee.

That stated, one must have due consideration for the manner in which an employee’s remuneration is calculated and, where the above opinion is correct, is that one cannot simply deduct moneys from an employee’s pay because it was not possible for him/her to render their service.

This does not, however, create the right for an employee to be paid where he/she has not rendered such service and this is where my opinion differs from what is contained in the article. In the article the assumption is that an employee is paid a weekly wage or a monthly salary, which implies that such an employee would be entitled to be paid such expected remuneration regardless of whether or not he/she could actually provide the required service.

This is strictly speaking, not untrue, however, as with all legal questions, the real answer is more nuanced than this.

As an example, an employee who is paid per unit of completed work (Piece-work), such as a furniture maker who is paid an amount of money for each completed item of furniture, would automaticlly not be entitled to any payment for any unit of work not completed. Similarly, an employee who is paid on an hourly basis, would only be entitled to payment for such hours as he/she tendered his/her service, meaning that if the employee fails to tender his/her service during such period, or where the shift-roster does not cover such a period, such an employee may not be entitled to payment during a period of loadshedding.

Force Majeur

The term, force majeur became quite popular during the national state of disaster implemented due to the COVID-19 pandemic, and some employers may be of the view that this will apply in this case, however I would disagree.

Force majeur or “act of God” is an unforeseen reason which has the effect of preventing the performance of any duty or obligation in terms of any contract (supervening impossibility of service) and therefore may exempt the execution of such duty or obligation, or to state it in simpler terms, may suspend the application of such specific terms for the duration of the force majeur event by virtue of having created a supervening impossibility of service.

There does, however, exist an explicit requirement that the act be unforeseen and this is where the problem arises. Loadshedding has been part of the South African landscape for several years and this means that in simplest terms, it is something that an employer ought reasonably to have foreseen. With this understanding, an employer would likely not succeed in arguing force majeur in these circumstances.

Supervening Impossibility of Service

While force majeur may not apply to loadshedding, we may, however, be able to split the two principals at play, i.e. force majeur and supervening impossibility of service so that the supervening impossibility of service is not necessitated by the force majeur but rather, as the case may be, by the loadshedding itself.

While this would still create the obligation on the employer to have taken reasonable steps to mitigate the impact of loadshedding on its business, the law is not prescriptive on what would be considered mitigating action on the part of the employer.

An argument could therefore be made, in the instance where the employer could not reasonably avoid the risk of loadshedding on its business, that by having taken reasonable steps to mitigate said risk, a supervening impossibility of service may still exist and therefore allow the employer to distance itself from such aspects of the employment contract as is necessarily impacted by the supervening impossibility of service.

While I would strongly caution against this approach it bears discussion and further interrogation, a simple example would be that while a small retailer could reasonably rely on manual transactions, battery operated Card Machines and Lighting to keep their business functional during a period of loadshedding and therefore have no such instance of supervening impossibility of service, a larger, industrial steel smelter may not be able to provide the electrical generation capacity required for its furnaces to function and thus could not reasonably mitigate the impact of loadshedding.

In simple terms, if the provision of a generator would not unduly burden the employer and would allow the continued operation of the business, it is obvious that this would be the preferred course of action rather than non-payment of remuneration.

Lay-offs / Alternative Working Arrangements

Another course of action, which is in-line with the principals of labour legislation, may well be to reach agreements with employees in terms of lay-offs, short-time, split-shifts or other alternative working arrangements.

As the loadshedding schedules can be reasonably predicted, an employer may elect to move its hours of work in-line with such scheduled times, changing the timing of lunch-hours, starting times and ending times around on an ad-hoc basis to accommodate the schedule.

While ordinarily, such a change in the hours of work may require an agreement with the employee(s) or face the potential of a dispute regarding an alleged unilateral change in conditions of employment in terms of section 64 (4) of the Labour Relations Act, 1995, some guidance is given in the matter of Apollo Tyres SA (Pty) Ltd v National Union of Metalworkers of SA & others (2012) 33 ILJ 2069 (LC), where it had been held that the change in hours of employment may not necessarily constitute a unilateral change in conditions of employment.

In summary, while ordinary hours of work, when they are fixed in terms of the contract of employment, may well constitute a condition of employment, several contracts of employment allow the change of hours of work as required in terms of the employer’s operational requirements or, and this is key, work practice. If this is the case, the aforementioned distinction is quite relevant.

Alternatively, employers may invoke section 189 of the Labour Relations Act, 1995, commencing with consultations in terms of possible dismissal for operational requirements (retrenchment) in order to compel employee to accept a change in conditions of employment or face dismissal as contemplated in the case of South African Transport and Allied Workers Union and others v G4S Aviation Secure Solutions (JS49/12) (LC) wherein it was held that the employer, when contemplating operational requirements, has a duty to remain profitable, which, by extension, allows the offering of lesser benefits and/or conditions of employment in order to avoid dismissing employees for its operational requirements. It should be noted that where employees refuse such alternatives and are then dismissed, they may not only waive any entitlement to severance pay in terms of section 41 of the Basic Conditions of Employment Act, 1997, but may further allow the employer to employ replacement labour to replace such employees or, in the alternative, offer to re-employe said employees at lesser terms.

Another approach would be to reach agreements with your employees to split shift systems so that they may work two four hour shifts in a day, therefore not being entitled to lunch and the obligations incurred on the employer in terms of extended lunch periods as envisioned in the Basic Conditions of Employment Act, 1997.

Employers should, however, remain cautioned by the fact that, where they require an employee to work less than four (4) hours in any day, such an employee would be entitled to be paid for at least four (4) hours in terms of the National Minimum Wage Act, 2018.


While it is not an automatic matter for an employer to avoid paying remuneration to its employees due, solely, to loadshedding, there are various mechanisms in law which may well absolve the employer of such duties and employers are urged to familiarize themselves with these aspects of law.


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