16 Mar 2017

There is no action that can be taken against companies which did not pay their employees for failure to report for duty because of natural disasters such as floods.

This was said by the Minister of Infrastructure and Housing Development, Mr Nonofo Molefhi in Parliament on Wednesday, on behalf of the Minister of Employment, Labour Productivity and Skills Development.

Mr Molefhi was responding to a question from the MP for Ramotswa, Mr Samuel Rantuana, who had asked the minister what action can be taken against companies which did not pay their employees for failure to report for duty because of natural disasters such as floods.

Mr Rantuana also asked if there was any law which protects such employees from being expelled for absenteeism or reduction/non-payment of their daily remunerations.

However, the minister said much as employers are not obliged to pay employees when their contracts of employment become impossible to perform due to natural disasters, ‘I must emphasise that the law does not prohibit employers from paying their employees in these circumstances. I therefore urge employers and employees to consult and engage in good faith to find an amicable solution.’

Regarding the law, Mr Molefhi said Section 16 (1) of the Employment Act Cap. 47:01 states that “every employer shall, unless the employee has broken his contract of employment or the contract of employment becomes, without default on the part of the employer, impossible of performance, provide his employee with work in accordance with the contract of employment during the period for which the contract is binding,”

He said during natural disasters such as floods, contracts of employment may become impossible to perform not because of employers’ fault. In such instances, he added, employers are not obliged to pay wages to employees for the days in question.

Furthermore, Minister Molefhi said Section 21 (2) of the Employment Act, Cap.47:01 states that an employee is not in breach of his/her contract of employment if he/she has “reasonable cause for such absence.”

This section, he noted therefore protects employees who fail to report for duty due to natural disasters such as floods since their absenteeism would not be intentional or predetermined and consequently not misconduct.

In addition, he said: “The rules of natural justice dictate that there must be a fair and valid reason for dismissing an employee for misconduct. Dismissing an employee for being absent from work due to a natural disaster cannot, in any way be fair and valid; in fact it would be cruel.

Therefore, any employee who is dismissed may refer the matter to the nearest District Labour Office, in terms of section 6 of the Trade Disputes Act, 2016 for mediation.” ENDS