The principle of “no work, no pay” is a part of our labour law and common law and is rooted in one of the core principles of the employment relationship, this being that an employee has an obligation to place his or her services at the employer’s disposal and the employer has an obligation to remunerate the employee for such services.
Where an employee elects to not render any services to an employer without a valid reason, including but not limited to sick leave, annual leave, maternity leave and or family responsibility leave, there is no obligation to remunerate the employee.
This principle becomes harder to navigate when the employee is not at work and therefore cannot render their services, however, the reason for the employee’s non-attendance is beyond the employee’s control. This has been a common issue and discussion in recent times due to the COVID-19 pandemic and more recently the riots and looting taking place in Kwa-Zulu Natal and Johannesburg.
There is a common law argument that “no work, no pay” will only apply where an employee has elected to not render their services to an employer and that by virtue of the employment agreement, written or otherwise, the employer is still obligated to remunerate the employee. Though this argument is hard to monitor and often places an added burden on employers, additionally the question of whether the employee genuinely elected to stay away from work or was forced to stay away is a conundrum in itself.
This question was dealt with in the recent Labour Court judgement of Macsteel Service Centres SA (Pty) Ltd v National Union of Metal Workers of South Africa and others [2020] JOL 47372 (LC) the court in this instance directed 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’.
In terms of the above, it is clear that there is no obligation to remunerate an employee if the employee does not render services to the employer, even when the employee through no fault of their own was unable to render such services. As such in instances such as the current riots and looting, should an employee not render services, the principle of “no work, no pay” can be applied.
Taking the above into account, this does not mean that the employer should apply “no work, no pay” if this can be avoided, many companies are looking for alternatives such as, with consent, making use of the employee’s leave days, and or paying the employee a full wage/salary and any “excess pay” is then owed to the company and can be deducted in the weeks and months to come.
It can be a complicated situation to handle, especially with larger or unionised workforces. With this being said if you need any guidance don’t hesitate to contact us.
