Ordinarily, if an employee is not at work and their absence is occasioned by something other than the taking of one of the forms of leave available to them, they are not entitled to be paid. This is based on the principle of ‘no work, no pay’.
The legal basis for payment of employees arises from the contractual obligations as contained in contracts of employment, where the employee undertakes to perform and the employer undertakes to remunerate an employee for that performance.
Yet, with the lockdown restrictions and ensuing novel workplace closures and limitations, one of the most prevalent questions asked by both employers and employees has been whether employees should still be paid if they do not work.
The common law doctrine of supervening impossibility states that performance in terms of a contract is excused when performance is rendered objectively impossible. As such, where an employee cannot work or an employer cannot provide work due to some circumstance outside of their control (such as the lockdown restrictions imposed), an employer will not have to pay an employee. This situation is an effective suspension of the employment relationship and an employer may thus unilaterally implement the principle of ‘no work, no pay’.
In June 2020, the Labour Court held that:
“The reality in law is that the employees who rendered no service, albeit to no fault of their own or due to circumstances outside their employer’s control, like the global Covid-19 pandemic and national state of disaster, are not entitled to remuneration and the Applicant could have implemented the principle of ‘no work no pay’.
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