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Rethinking Labour Law in the midst of a Water Crisis

//Rethinking Labour Law in the midst of a Water Crisis

Rethinking Labour Law in the midst of a Water Crisis

When will an employees’ collection of water render him/her absent without leave and is this a ground for termination of the contract of employment?
The starting premise for any such investigation is the ordinary contractual relationship, namely, that an employee renders services to an employer in return for which payment is made. Building on that premise the Labour Relations Act (as amended), as well as the Basis Conditions Of Employment Act further the protection to an employee and also the obligations of the employer, should the employer wish to discipline and dismiss an employee.

Much time has been devoted by the media to coverage of water saving mechanisms, causes for the drought and more importantly, what the residents of Cape Town would be subjected to should day zero arrive. We are told by the City Council and its representatives that should day zero arrive water depots will be established to provide a limited amount of water to each person in a household. That daily allowance is 25 litres. What has not been considered or commented on is what are the rights of the people standing the long queues vis a vis their employment. If they fail to attend at work are they considered to be absent without leave? If they are granted permission to stand in a queue and collect water is this considered a day’s leave and will it be deducted from their annual leave? Are these days simply to be counted as unpaid leave insofar as the employer is concerned and for how long can this continue? Usually, short-term absences would be attributable to either incapacity or misconduct or in some cases, to a combination of the two. Although employees are entitled to unpaid leave that right may be open to abuse.

When considering an employees’ absence we would generally take into account the following:-

1. The reason for the absence; and
2. The employees’ work record; and how that absence was treated by the employer in the workplace in the past.
To that end the disciplinary code which the employer has in place, provided that it is fair and reasonable, is determinative.

It is the employee who has to explain any absence but the employer who must justify taking the drastic step of terminating the employment relationship on the basis of either an absence of an unreasonable delay alternatively absenteeism which is frequent enough to disrupt work (the daily collection of water). In the instance of employees queuing for water, it will be very difficult for the employer to terminate the employment relationship on the basis that they have deserted their workplace. There is no intention by those employees to do so. What they are really doing is securing their family’s rights to a basic necessity. An agreement must be structured as to how and when employees may be absent from work.

If an employee strays from such an agreement, it would constitute insubordination, in other words, a failure to follow or obey a lawful instruction? and what is the instruction? Is it in fact lawful? The instruction would be the immediate return to work and a refusal to allow the employee the time to queue for water. Would this be a reasonable instruction? To answer that, the circumstances surrounding the instruction must be considered including the state of emergency and the crisis in the province. This does not, however, excuse the employee from rendering a service in terms of the employment agreement. It is my opinion that the just position would be for an employer to organise a roster or time for employees to collect water and that the parties agree that this is done on full remuneration or some other hybrid basis of payment. This is a state of emergency and may continue indefinitely. It is open to abuse by employees but as with all other instances of misconduct if abuse is suspected and an investigation reveals that the time allowed by the employees to collect water has been abused by an employee then steps may be taken in terms of a disciplinary code to discipline the errant employee.

There will be a great disruption in offices and workplaces around the province as a result of the water shortages. Productivity will be affected dramatically. Economists and politicians are already predicting this. This is an extreme disaster scenario and one to which the law will have to be adapted.

 

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Malcolm Lyons and Brivik specialise in medical law, personal injury law, labour and road accident fund claims and have been recognised as leading attorneys in South Africa since 1965.

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2018-11-03T22:27:17+02:00April 26th, 2018|Labour Law|