Can an employee claim unpaid salary from lockdown?

Many employees were either not paid any salary or were paid a reduced salary during the lockdown while their employer’s operations were shut down. This has resulted in certain employees seeking advice on whether they can legally claim unpaid salary from lockdown.

The answer to this question lies in the employment contract which regulates the employment relationship. The obligation to pay remuneration is primarily a contractual one. It gives rise to reciprocal obligations in terms of which the employer is obliged to pay the employee remuneration in exchange for the employee tendering (not rendering) his/her services.

As a result of this principle, the employer’s obligation to pay the employee arises from the employee making his services available to the employer and not performing his services. Where an employee was not prevented by the lockdown from tendering his services (even if the employer decided to close its operations and not to accept that tender), the obligation to remunerate the employer continued.

However, if the employee could not legally tender his/her services (for example, if it would have been illegal for the employee to perform the work due to the regulations issued in terms of the Disaster Management Act), this would not give rise to the reciprocal obligation to pay the employee.

The employer and the employee could also have agreed to a special dispensation on remuneration for the period of the lockdown (for instance, to a reduced amount of remuneration). If such an agreement was reached, it would modify the employment contract, and there would not be any contractual basis to claim the shortfall unless the agreement provided for the employer to pay back the shortfall at a later stage.

As appears from the above, the issue is a complex one and it is not clear-cut to claim unpaid salary from lockdown. Each case depends on its own facts, and must be carefully considered in the context of the contractual framework regulating the relationship.