Mid July 2021 South Africa was captivated with images of destroyed business structures, people looting businesses and malls, leaving a path of destruction in their wake. The real intensity was felt in KwaZulu-Natal and parts of Gauteng. A minister in the president’s office, Khumbudzo Ntshavheni, confirmed that ‘The South African police has revised the total number of deaths in Gauteng (province) to 79 and KwaZulu-Natal to 258, as related to the unrest…’ Even though the unrest was limited to approximately one week the ripple effect, especially to you as employee, might still have devastating results.
Many of you might be employed by an employer whose business was looted and even completely destroyed, whilst some of your employers might have been forced to close the workplace to ensure your safety. Some of you might have been intimidated and prevented from going to work by protesters. The reality is that the closure resulted in ‘no work-no pay and no accrual of benefits’ flowing from the principle of ‘impossibility of performance’.
Impossibility of Performance
Normally when you are prepared to render your services in terms of your employment contract and the employer refuses to let you, the action goes to ‘breach of contract’. The flipside of the coin is ‘impossibility of performance’. Your employer does have a duty in terms of the Occupational Health & Safety Act 85 of 1993 (OHSA), section 8, to provide and maintain a safe working environment. This is when you are prepared to render your service, your employer wants you to perform in terms of your employment contract, but there is literally no possible way for you or your employer to perform your respective duties. The impossibility suspends the obligations in terms of the employment contract, but does not terminate the contract and indirectly your employment. This follows the confirmation by the High Court in Unlocked Properties 4 (Pty) Ltd v A Commercial Properties CC (18549/2015)  ZAGPJHC 373 (29 July 2016), that the test for impossibility to perform is: ’The impossibility must be absolute, or objective as opposed to relative or subjective. Subjective impossibility to receive or to make performance does not terminate the contract or extinguish the obligation…’ (Own emphasis)
The fact that you could not work and your employer could not open shop, as a direct result of the unrest and looting, falls within the ambit of ‘supervening impossibility of performance’. Your employer can now assist in claiming ‘temporary lay-off’, ‘reduced working time’ or ‘short time’ from the Unemployment Insurance Fund. The emphasis here is on the impossibility to open the workplace, destruction of the workplace and, as a result, the impossibility to render service. Important to remember, this claim will not be from the Covid-19 TERS Fund, but it will be a ‘’Reduced Work Time (RWT)’ or ‘Temporary Lay-off’ claim. Payments of these claims are subject to your available credits, with the Unemployment Insurance Fund, accumulated over the past four years.
Another situation might be where your employer took precautionary steps and requested that you do not report for duty. Here it was, and is, an employer driven initiative as the employer could still operate and decide not to. Your employer might request that you take leave for these days or remunerate you as per the norm. The alternative is that your employer advance your salary, with a ‘loan agreement’ in place. In this instance a claim for ‘reduced working time’ or ‘temporary lay-off’ can still be submitted for the period you did not work. Bear in mind that the Unemployment Insurance Fund pays all claims directly to employees, unless the employer can proof that the employees have been paid already.
For more information on TERS claims, please follow this link.
Currently both employers and employees are experiencing hardship, but remember that both you and your employer have rights and obligations. Do not sign you rights away! Contact MISA for assistance prior signing or entering into any agreement with your employer, if you do not understand or agree with such an agreement.
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Kindly utilise the following e-mail addresses and links for assistance during this time:
Legal/Labour-related enquiries Legal@ms.org.za
Legal Reception 011 476 3920
MISA Benefit claim-related enquiries Claims@misa.org.za
Any other enquiries Info@ms.org.za
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