It’s 2020, and “LOAD SHEDDING” is back with us once again. At the same time business confidence levels have plummeted to pre-1994 levels. No-doubt, the return of power outages (planned and unplanned) has contributed to this decline in business confidence, as it continues to have severe implications for employers both large and small.
Some Employers may be under the impression that they do not have to remunerate their employees during load shedding, but nothing could be further from the truth. If employees are complying with their terms and conditions of employment (tendering their services as and when required), then the Employer is obliged to pay them, regardless of disruptions caused by load shedding or any other reason beyond the employee’s control.
To reduce the negative impact on their businesses, certain Employers have attempted to treat periods of load shedding as official “meal intervals”, but load shedding phases can be highly unpredictable, to say nothing of the fact that they more often than not exceed the one-hour meal interval which most employees are entitled to.
So, what alternatives are there to restructure your business model, in a way which would work in favour of both Employers and employees? Most employees are well-aware that their own job security is aligned to the success of the organisation, and our law is flexible enough to allow the parties to “agree” to changes to working hours and/or shifts, provided that the total number of ordinary hours worked per week does not exceed the statutory threshold. In order to find a solution, it may therefore be worth taking your employees into your confidence to strategise on the “options” at your disposal. Brainstorming and jointly coming up with a solution often means there’s automatic “buy-in” and far more chance of the new arrangement succeeding.
One such option is working “flexitime”, a preference that seems to have gained considerable traction in South Africa, especially amongst employees who have had their fair share of traffic snarl-ups. In turn, the reality of load shedding may well be a factor which convinces even conservative-thinking Employers to take flexible working arrangements more seriously.
Naturally, some businesses are more conducive to making the switch to flexitime arrangements – especially those in the services industry (e.g. IT businesses; sales; attorneys to name a few). Conversely, one may find that certain job categories even within the above sector may not lend themselves easily to a flexitime arrangement (e.g. roles where an employee’s physical presence is required).
Assuming flexitime is a viable option for your business, the million-dollar question is how do you implement it as smoothly as possible? Well, as with most legal matters, it is not quite as easy as one may think. First prize is obviously “reaching agreement” with the affected employees as opposed to unilateral implementation – although the latter scenario is not entirely ruled out, provided you have a compelling business case, and a series of consultations is initiated with employees in good faith. There are employment related risks in the method used to migrate to a completely “new” work schedule, and a disgruntled employee could refer the matter to an external forum such as the CCMA (and/or our Labour Courts) as a dispute. In order to determine the “fairness” of your change implementation process, the Commissioner (or Judge, as the case may be) will interrogate whether you as the Employer had a substantive commercial rationale to propose such changes in the first place, and whether a meaningful joint consensus seeking process was undertaken before any changes were introduced. This is because in South Africa, contractually agreed work times (or work schedules which have become entrenched over time through conduct and practise) cannot just be replaced with new working hours overnight. That said, the Employer needs to remember that, although achieving consensus is ideal, introducing such changes is also not done on the same basis as “wage negotiations” or “collective bargaining”.
As much as some employees may battle to accept change, you may equally encounter a situation where certain employees are eager to switch to a flexitime regime but cannot do so because their jobs require them to be physically present at the workplace (as opposed to being able to work off-site). Can such employees claim to have been discriminated against, by virtue of being treated differently – i.e. by being excluded from the proposed flexitime arrangements? The answer to this, aside from interrogating the overall commercial rationale and consultation process, is to look at the inherent requirements of the “excluded jobs”, which would serve as your objective justification for the differential treatment.
To sum up, load shedding comes with its risks and opportunities. Implementing organisational change in response thereto, can become quite technical and has its fair share of twists and turns, so before you start the process, it is recommended that you engage a professional facilitator with the requisite experience in labour law.
Carlo Torino is registered as a practising attorney in KZN. He has over 25 years’ experience in the corporate sector as a labour relations and employment law specialist and has been involved as an employer representative in CCMA, Labour Court and Labour Appeal Court matters. For more information on the wide range of employment law services he can offer, contact Carlo Torino on 082 773 8130. Mention this article and you could get a “free” 15-minute consultation (by arrangement).