The basis of employee-employer relationship is the employment contract. The fundamental principle of this contract is:
- The employer’s expectation that the employee performs their duties; and
- The employee’s expectation of remuneration in exchange for such performance.
It is thus fair that an employee expects security from the employer for as long as their able to perform their duties. However, this is not
Lawful reasons for deviation
It is important to note that the employer’s obligation is not discharged permanently. Unless an employee is dismissed the employer has an obligation to restore the employment relationship, at a future date, and performin respect of its obligations towards the employee.
What about COVID-19 and the lockdown?
During the national lockdown it has become impossible for employees in most industries to perform their duties as they were/are unable to go to work. Accordingly, the employer’s reciprocal duty fell away and the employer was/is not obligated to pay the employee for the period in which they do not perform.
The employee’s expectation of payment is however not unfounded as is clear through the government’s directive in which it urges companies to continue paying their employees regardless of the fact that the employees are unable to fulfil their duties.
Furthermore, the government put several programs in place to assist employers during this time, as it would not be fair to expect a company to continue paying its staff when its source for generating income has been cut off. The most prominent of these assistant programs being the Temporary Employment Relief Scheme (TERS).
When it comes to the management, amendment and/or termination of the employment relationship, there is always a prescribed process that needs to be followed. This is applicable to the above circumstances where employers cannot fulfill its obligations towards the employee.
When faced with the situation where an employee is unable to perform their duties and accordingly fulfill its obligation towards the employer, the employer can consider the following alternatives before instantly ceasing its reciprocal duty:
* These are some examples and does not represent an exhaustive list of options
Communication with the employee
The employer is required to be transparent with the employee regarding the requirements of the employer. If the employer cannot fulfill its obligations employees need to be made aware and alternatives need to be communicated with the employees if the employer is going to implement an alternative.
When neither party is able to fulfill its obligations due to circumstances such as Lockdown, which is out of the control of both parties the doctrine of supervening impossibility can be applied. This would have the impact of both parties’ obligations being temporarily suspended until such time that the event of impossibility has ceased.
How can we help?
- We can help employers investigate alternatives and establish tailored solutions to ensure the sustainability and future success of the company. Both from an HR perspective as well as from a holistic perspective, taking into account all relevant factors.
- We can assist employers in navigating the legalities and lawful implementation of these solutions.
- Assist in negotiations with employees and/or unions.
The information shared on this article/blog/vlog should be read and understood within the current legal framework of South Africa. It is meant purely for educational discussion and does not amount to legal advice. For specific legal advice, please consult a legal practitioner prior to application.