The taxi strike has given rise to several questions surrounding an employer’s responsibility towards its employees. Do employers have an obligation to provide transport or to pay employees? What about the employer’s obligations in terms of occupational health and safety legislation?
Our understanding is as follows:
Obligation to pay?
An employer’s obligation to pay its employees arises from the fact that employees make their services available to the employer. If employees cannot report for work due to the taxi strike, they are not entitled to be paid. (This is different to situations where employees make their services available and the employer is unable to utilise their services due to circumstances beyond the employer’s control – for example loadshedding – where employers have an obligation to pay their employees merely due to the fact that employees are available to work).
Unpaid leave or annual leave?
If there is no obligation to pay, the logical consequence is that the employees’ absence would be regarded as unpaid leave. Employers should, however, consider giving their employees the option of applying for annual leave.
As a general rule employees take responsibility for transport between home and work. However, the contract of employment may determine that the employer provides transport to its employees. If the employer is not able to provide transport due to the taxi strike, there may be an obligation on the employer to pay employees who do not come to work. The extent of this obligation would depend on the circumstances and the wording of the contract, though.
Health and safety
Occupational health and safety legislation only applies in respect of employees’ transport to and from work in cases where the employer provides transport to its employees. The extent of the application of such legislation would depend on the specific circumstances.
Neither employers nor employees are to blame for the lack of transport due to the taxi strike. It is understandable that some employers are prepared to grant their employees a form of “special paid leave” on compassionate grounds. Doing so could have its own challenges, though: It could create a precedent (expectation that the employer will make a concession in similar circumstances in future). Where employers decide to grant such leave, it should be made clear that it is a one-off concession, the criteria that are used in determining who qualifies must be clear and unambiguous, and the criteria should be consistently applied.
The taxi strike could have other situation-specific implications. Labourwise subscribers may e-mail their questions to firstname.lastname@example.org
Disclaimer: The material above is provided for general information purposes and does not constitute legal or professional advice. Labourwise does not accept responsibility for any loss or damage that may arise from reliance on information contained in this article.