In the scenario where an employer was not permitted to trade during the Covid-19 lockdown (i e hard lockdown), are the employees, who could not tender their services lawfully, entitled to their normal benefits, such as leave and bonus benefits?
What is the difference between the aforesaid scenario and the scenario where the employer was permitted to trade in some form during the national lockdown (i e soft lockdown) but elected not to do so on account of its evaluation that trading would not be profitable?
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The labour court, in Glen Carol (Pty) Ltd v National Bargaining Council for the Clothing Manufacturing Industry (2023) 44 ILJ 563 (LC); (2022) 33 SALLR 273 (LC), adopted the following approach to this scenario:
- if the employer was not permitted to trade during the lockdown and the employees could not tender their services lawfully, this constitutes a form of temporary (subjective) impossibly of performance and the employer is not obliged to pay wages – seeing that the affected employees could not tender their services lawfully, under the above circumstances, the employer’s obligation to pay wages was equally suspended, including the entitlement to benefits, such as leave and bonus payment
- however, different to the above is the scenario where the employer was permitted to trade in some form during the lockdown but elected not to do so – the affected employees could tender their services lawfully, but the employer refused to pay them and, under these circumstances, the defence of supervening impossibility of performance is not available to the employer (Matshazi v Mezepoli Melrose Arch (Pty) Ltd and Another (2021) 42 ILJ 600 (GJ))
