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Loadshedding is a scourge on South Africans, and with higher stages of loadshedding being implemented more and more, many businesses have had to face the reality of retrenchments and cutting pay or closing down completely. It’s a tough situation, but the law is the law, and you may be wondering if your employer can actually legally cut your pay if you are unable to work due to loadshedding. Scorpion examines this labour legal issue.
Your employer cannot simply ‘cut’ your pay. Section 34 of the Basic Conditions of Employment Act (BCEA) makes it clear that no deductions can be made by the employer without the employee’s agreement in writing (unless the deductions are required or permitted in terms of a law, collective agreement, court order or arbitration award). It is possible that the employer is justifying the pay cut by saying it is a ‘loss’ that must be reimbursed by the employee. But this would also not hold, since the employer would still need the employee’s consent to cut their pay. In addition, the ‘loss’ would have to be due to the employee’s fault, and loadshedding most certainly is not the employee’s fault.
Each individual’s situation is different, so there is no right or wrong answer here, but we can explain the potential consequences of the decision.
If you refuse a pay cut, the employer could decide to implement short time. This is not allowed to be used as a ‘punishment’ tactic to get back at the employee for refusing the pay cut, and must be applied fairly – the employer must implement the short time equally across the entire company or department that is affected. The period of short time must also be fairly distributed across all affected employees. Even so, employees must still be given notice of the short time.
It’s also important to check your employment contract, since many will contain clauses that cover the employer to allow short time to be used, or there is a collective agreement in place for your industry that allows short time. If your employment contract does not have a clause on short time, and you are not covered under a specific collective agreement, then your employer may not implement short time without your agreement.
If you refuse the short time, the employer may have no option but to institute retrenchment proceedings. Again, these must be procedurally and substantially fair, meaning the correct procedures must be followed and the reasons must be fair.
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* This is only basic legal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.
Date added: 2 February 2023
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