The Labour Court docket has offered much-needed readability on ‘no work no pay instances’ through the nation’s coronavirus lockdown, says Bradley Workman-Davies, director at Werksmans Attorneys.
This follows the Johannesburg Excessive Court docket case of Mhlonipheni v Mezepoli Melrose Arch and Others which discovered that workers have been in a position to tender their providers throughout Degree 5 and Degree four of the Nationwide Lockdown, and accordingly that their salaries have been owed by their employers throughout that interval.
This resulted of their unpaid salaries being thought to be money owed owed by the employers, and the employers’ self-professed incapability to pay these quantities main them to be positioned into enterprise rescue, he stated.
Workman-Davies stated that the judgement was criticised for its arguably incorrect strategy that non-essential workers have been legally entitled to tender their providers through the Degree 5 and Degree four levels of the lockdown.
A overview of this judgement was urged with the intention to right this authorized misinterpretation, he stated.
Labour Court docket ruling
Workman-Davies stated that the Labour Court docket has lately introduced on the difficulty within the case of Macsteel Service Centres SA Proprietary Restricted v NUMSA.
Though the case handled an pressing software introduced by Macsteel to attempt to stop a strike by NUMSA, the choose accurately handled the difficulty of whether or not workers may tender their providers, and due to this fact be entitled to cost of wage, throughout these restricted durations of financial exercise throughout Degree 5 and Degree four levels of the lockdown, Workman-Davies stated.
“In doing so, the choose discovered that whereas Macsteel had generously undertaken to pay 100% of salaries in March and April, after which as much as 80% of workers’ salaries for Could, June and July 2020, with the Unemployment Insurance coverage Fund Non permanent Worker Aid Scheme being relied upon to make cost of the steadiness, it, actually, had no authorized obligation to take action in respect of workers who weren’t legally in a position to work.
“The court docket held accurately, that these workers who ‘rendered no service, albeit to no fault of their very own or resulting from circumstances exterior their employer’s management, like the worldwide Covid-19 pandemic or the nationwide state of catastrophe, should not entitled to remuneration and Macsteel may have applied the precept of no work no pay’.”
Workman-Davies stated this labour court docket judgement is to be welcomed, in that it confirms that the right authorized strategy is that the place it was legally impermissible for workers to carry out providers, the tendering of providers by these workers is irrelevant, and the employer is entitled to implement a no work no pay precept, on the idea of the authorized impossibility of each events performing.
“Moreover, a case by case evaluation should be adopted, and even (if essential) assessing workers on a person foundation to evaluate their particular rights,” he stated.
“This Macsteel judgement from the specialist labour court docket, relatively than that of the Excessive Court docket in Mezepoli, ought to be relied upon as setting out the right strategy.”
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