Power cuts, not pay cuts

Load-shedding is disrupting businesses across the country, and employers may begin to wonder whether they can dock an employee’s pay when they cannot work due to power cuts – the short answer is no.

Section 34 of the Basis Conditions of Employment Act (BCEA) states that an employer cannot dock an employee’s pay unless both parties agree to it in writing or it is legally required.

This section applies in any case where the reason for not performing at work is beyond the employee’s control – including load-shedding, according to law firm Cliffe Dekker Hofmeyr.

Deductions may be made to reimburse employers in the following circumstances:

• for loss or damage caused by employees in the course of their employment
• if the loss or damage was due to the employee’s fault
• if the employer has given the employee a reasonable opportunity to show why the deductions should not be made
• if the total amount of the debt does not exceed the actual amount of the loss or damage or one-quarter of the employee’s salary in money 

However, even in these circumstances, the employer cannot deduct money from the employee’s pay without the employee’s consent.

Docking pay without consent would violate the BCEA and open the employer up to a legal dispute with the employee whose pay was docked.

An employee in this situation who earns less than R224,080.48 per year can take this dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

An employee who earns more than this threshold can – depending on the jurisdiction – make a claim in the Labour Court, the High Court, the Magistrate’s Court or the Small Claims Court.

However, this does not mean that the employer has no options when it comes to non-performance due to load-shedding. Employers can do the following:

• Obtain an employee’s written consent before docking their salary.
• Place employees on short time.
• Align employees’ operating times/working hours with load-shedding schedules.
• As a last resort, consider retrenching employees due to operational requirements, the impact of load-shedding and the need to keep the business running.