The recent riots in South Africa and consequent damage to property and closure of businesses may, in certain circumstances, make it impossible for the employees to physically tender their services and for the employers to allow the employees to tender services or to receive the tender of such services. This begs the question, is the employer still obliged to remunerate the employees.
The fundamental questions here are whether employees are obliged or required to report for work, and whether employers are obliged or required to remunerate where they don’t.
A contract of employment is an agreement between two parties in terms of which one of the parties (the employee) undertakes to place his or her personal services at the disposal of the other party (the employer) for an indefinite or determined period in return for a fixed or ascertainable remuneration.
Where the workplace is damaged and inaccessible, this may constitute a form of temporary supervening impossibility of performance in respect of the employees’ ability to tender their services and the employer’s ability to be in a position to allow such. The result of the impossibility of performance will be that certain aspects of the employees’ employment contracts are suspended for the duration of that supervening impossibility of performance. This may relieve the employer of the obligation to remunerate its employees. However, this position cannot remain so indefinitely, and employers will have to determine whether they are able to continue to employ the employees or whether they will have to dismiss them based on their operational requirements.
Considerations of health and safety are also paramount. Employers need to determine whether it is safe for the employees to work, and where it is not so, the employer must not permit its employees to report for work. Such a situation may, however, not give rise to a supervening impossibility of performance, as the decision is the employer’s not to permit the employees to report for work. In such circumstances, the obligation to pay the employees is likely to persist.