Both corporate and small to medium enterprises’ productivity has been affected by the ongoing load shedding because of failing internet connections, missed deadlines as employees aren’t able to complete tasks on time and disruptions to supply chains from the reduced output of goods manufactured. Staff are having to redo work owing to lost data and are generally forced to take a longer period to complete their work.
The employer’s business performance is most often only as good as their staff performance such that, when load shedding hits, morale dips drastically. This has a profound effect on productivity during and post-load shedding, retention and inter-office communication.
Power supply disruptions, including planned load shedding, are likely to persist nationwide through at least early 2023. We are getting used to load shedding and it almost certainly is going to be around big time. Business is already feeling the effects of time disruptions and a major area of concern is how you deal with your workforce in this testing period. A good place to start with is employment law.
Are employers obliged to pay for time lost during power outage? In terms of Employment Law, the concept of paying for agreed output or performance does not apply. If, for example, an employee is expected to work from 8.00am to 5pm and, at 10:00am, load shedding takes place, you are obliged to pay the employee in full. The fact that work cannot take place for reasons outside the control of the business does not affect the employer-employee contract. If the employee is available and ready to work, then that employee is to be paid.
Should an employer ask their employees to make up for the load shedding downtime, then they are potentially liable for overtime if working hours are extended beyond the norm.
The best way to break this logjam is to negotiate an agreement with the labour force (and any union/s in the workplace) to adjust working hours and conditions to minimise the impact of load shedding for everyone’s benefit, i.e., creating a win-win situation. Employers must remember that any alteration to the working conditions requires the employees’ consent to make these changes legally acceptable.
It is not compulsory, in terms of the Employment Act (2000) of the Laws of Malawi, to work overtime; nevertheless, circumstances (such as operational requirements caused by load shedding) may warrant extension of working hours. An employer may require employees to start work later than usual and finish later than usual. But an employer may not unilaterally implement new working hours. In most cases, employees must agree to such changes.
It may be possible for the employer and employee to agree in the employment contract that payment or remuneration will be suspended during load shedding. The difficulty with this is that the employees will have to agree to such terms (or changes to their contracts of employment). If they do not, these changes cannot be implemented unilaterally.
Failure to reach an agreement between the employer and employees has its own consequences. For instance, if load shedding is significantly impacting the business, the employer may be forced to begin a process of restructuring the business in terms of the Employment Laws. The process will involve steps like negotiating that there is no pay when there is load shedding, or reduced overtime and/or changes to working hours. Employees who refuse to go with this process face retrenchment proceedings. The employer would have to follow certain steps and show that, due to operational requirements brought about by load shedding (being the technological, structural or similar needs of an employer), the employer needs to retrench a given number of employees.
However, the difficulty with this approach is that it is time consuming, the requirements for successful retrenchment are complicated and strictly enforced and, if the issue is referred to the Industrial Relations Court, it could be costly and take further time.
It is clear that load shedding will be with us for some time to come. Employers must be cautious not to contravene employment law requirements during these periods in an effort to reduce the consequences of load shedding. It is advisable that employers negotiate a plan to minimise its effect on employees. For example, where load shedding is planned for the beginning or end of a shift, the times of the shifts could be amended to ensure there is no loss of work time.