It is a common occurrence that employers send employees home when tools of trade are no longer available. It is often seen across all industries within the labour sector, but more specifically in workplaces which require employee to operate machinery or motor vehicles when exercising their duties.

Employers sometimes unknowingly or mistakenly fail to follow correct procedures, advising the respective employee that there will be a break in employment, such as:

• Failing to provide alternative tools or resources for the employee to continue their work duties, if they are available.
• Failing to provide the employee with anything formal outlining the operational requirements that cannot be met.
• Allowing a substantial amount of time to pass by, with no finality concerning the employee’s return to work.

The Basic Conditions of Employment Act (BCEA) does not directly address this scenario, nor does the Labour Relations Act (LRA); however, when interpreting standard employment contracts, the Common Law tends to suggest following the widely used term known today as “no work, no pay”.

However, what happens when “no work” is a result of “no tools”?

The employer needs to consider following a fair and transparent process, fully involving the employee and keeping the employee informed about the situation and the possible outcomes that could follow. The employer would need to have everything necessary in writing and have the employee acknowledge same.

It must be emphasised that the employer should aim to avoid asking the employee not to come to work by ensuring they have indeed exhausted all possible alternatives. Considering the available alternatives for the employer is very important. There are several options an employer can consider.

An employer can:

• Implement stricter policies and procedures when it comes to workplace equipment. The implementation of such policies will outline how machinery is to be used and the steps to follow before using it. This will encourage employees to be more careful and diligent in their duties, but also allow for disciplinary action to be taken. For example, those in the logistics industry are encouraged to have pre-vehicle inspections conducted by drivers before embarking on any journey.
• Re-assign an employee to a role with different or similar duties. The employer can provide the necessary training if required for the employee to embrace the new duties and responsibilities. This ensures the employee remains active in the workplace and allows for the continuation of employment.
• Implementing short time: Short time is a more complex procedure and would require an active engagement on the part of the employer with the employee. The reasons for the short time must be effectively communicated. Short time is not the most ideal situation for employees; however, it does allow for the continuation of work activities and does not abruptly cease employment.
• Retrenchment due to operational requirements is also an option employers can explore. Employers would need to consider this as a last resort. The retrenchment method would need to follow a strict procedural and substantive process; however, operational requirements not being met, such as tools not being available, is not a rare occurrence.

Employers would need to tread carefully when faced with the reality of having to pause the continuous employment of the employee, because the necessary tools are not available. Employers who simply send employees home, without showing an attempt to follow a fair process, face the risk of having several disputes referred to the CCMA or even the Bargaining Councils by disgruntled employees.

The disputes could include, but are not limited to, the following:

• Unfair dismissal.
• Unfair suspension or disciplinary action.
• Unfair labour practice.
• Unilateral change to terms and conditions of employment.

The employee would merely need to show that they were sent home due to tools of trade not being available, regardless of whether it is a fault of theirs or not, without following any procedure. It is then highly possible that a presiding commissioner could interpret it as a dismissal and issue an adverse award for which the employer would be solely liable on a procedural fairness basis, regardless of whether there was good reason or not.

Therefore, employers must always consider the implications of acting hastily and simply sending employees home without providing adequate support. The unavailability of tools can be a result of many different reasons; however, regardless of who caused the tools not to be available, fair labour practices must always be considered and complied with.

Tips

1. Exhaust all alternatives before sending employees home.

Before deciding to suspend work because tools or machinery are unavailable, consider other options such as reassigning employees to alternative duties, implementing short time work, or providing temporary replacement equipment. This demonstrates a fair and reasonable approach and reduces the risk of disputes.

2. Follow a fair, transparent, and well-documented process.

If work cannot continue, communicate clearly with the employee, outline the reasons in writing, and have them acknowledge receipt. Keep records of all steps taken and ensure the employee is kept informed of possible outcomes. This safeguards against CCMA or Bargaining Council claims for unfair dismissal or unfair labour practice.

Written by Zolile Maphosa, Dispute Resolution Official, CEO SA