Docking workers’ pay during load shedding is illegal

EMPLOYERS – particularly of domestic workers – have been warned that docking an employee’s pay because of hours lost to load shedding is illegal.

Maggie Mthombeni, the case manager at domestic workers’ alliance Izwi, said load shedding had affected domestic workers negatively.

“Domestic workers are suffering from the effects of load shedding, with pay cuts, retrenchment and dismissal.

“One recent case reported to us was of a woman who went to work to be greeted by her employer saying ‘surprise, I can do the ironing!’

“The employer said she learned how to iron and vacuum overnight when the electricity was back because her domestic had left the ironing during the day when there was load shedding. This has become a norm, that employers are doing ironing, vacuuming or washing laundry at night and they say they are saving money. Some domestic workers have reported pay cuts because of the decrease in the times they work,” said Mthombeni.

“Some live-in domestic workers say that because of the hours of load shedding during the day, their employers have asked them to work at night without pay because they say they were not working a lot during the day time. This is unfair because there has to be some compensation for night shift workers,” she said.

Mthombeni said employers needed to try to retain jobs because domestic workers were mostly single parents or sole providers in their households.

She recommended a compromise between both parties. She also thinks the government should step in and compensate employees to prevent the loss of jobs.

Businesses will have to reconcile losses caused by the energy crisis and the docking of pay is a topic they will have to consider.

Kgodisho Phashe, an employment law expert and associate at commercial law firm Cliffe Dekker Hofmeyr, said the docking of salaries because of load shedding was illegal.

“Although this matter is not prevalent in the country yet, a lot of employers are under strain and are considering how to alleviate some of that burden.

“The normal rule is that employers have to pay employees who make their services available in terms of their contract of employment.

“As long as the employee is available to work, then the employer has the duty to pay. This duty to pay and the corresponding right to receive payment does not arise from actually performing the work, but from tendering the service and being available to be productive or having the capacity to be productive,” said Phashe.

“You cannot unilaterally change provisions in a contract to say now that we are battling with stage 6 load shedding we will cut salaries; that is illegal.

“However, the door is not closed for future contractual arrangements between employers and employees. They can agree on something more flexible, or align duties that might not need electricity to those hours when load shedding is in progress, and maybe pay less for it, but all that is in agreement from both parties and events involving trade unions.”

Food and Allied Workers Union media liaison Dominique Martin said this practice should involve a consultation with employees before it was implemented.

“Such practice just does not seem right, because the employer would be punishing the worker for something that is beyond their control. However, I suppose it also depends on the kind of business and its dynamics. Our recommendation would be that there needs to be consultation with the employees so everyone knows how the load shedding impacts the business and subsequently what to expect in terms of employees’ pay,” said Martin.

Phashe recommended that employers consider how to negotiate, as both parties need each other.