It had become a common practice over the past few year where employers tend to change the terms and conditions of their employees’ employment contracts without prior consultation, adequate reasoning or proper implementation. So naturally the question that needs to be answered is – is this legal? And if so, to what extent? Do employers have free reign to amend employment terms and conditions unilaterally?
Employers should be aware that there is a very fine line between unilateral changes to employee terms and conditions which are permittable and those which are not.
The Labour Relations Act (“the Act”) protects an employee when there is a significant variation to an employment contract carried out unilaterally by the employer ( S186 ) . If the terms and conditions of an employment contract are varied to such an extent that the nature of the employment changes, it may very well be deemed a dismissal as the previous contract of employments had come to an end.
If an employer proposes certain amendments, to which the employee objects, and still proceeds to implement these, it may also constitute an unfair labour practice in terms of the Labour Relations Act.
In both these instances an employee will have the right to approach the applicable Bargaining Council or the Commission for Conciliation, Arbitration and Mediation (“the CCMA”) if they feel they have been wronged by any changes implemented by the employer. Furthermore, if an employment contract is varied to such an extent where it had become void, the employee may also have the right to pursue civil action based on contractual breaches.
But, there remain two sides to the law. Certain provisions allow for employers to make unilateral changes to the employment terms and conditions of employees. One such example is for operational requirements – meaning to ensure the continuity of a company, business or entity. Should the proposed amendments to the terms and conditions of employment be for such reason, and the employee refuses to accept these changes , then the employer may also exercise its rights to initiate retrenchment proceedings.
It is important that employers actively engage with employees when proposing changes to try and find an amicable solution to the benefit of both parties in the employment relationship. An employer should never try to rule over an employee with an “iron fist.”
Should you and / or your organisation require advice on this issue, do not hesitate to contact Malcolm Lyons & Brivik Inc. with your query.
Author: Marco van der Walt
Candidate Attorney at Malcolm Lyons and Brivik Attorneys Inc.
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