IS THE EMPLOYER ALLOWED TO CHANGE THE TERMS AND CONDITIONS OF EMPLOYMENT WITH AN EMPLOYEE, UNILATERALLY??
A complaint that often arises from Employees is that the Employer has made some or other unilateral change to the original terms and conditions of employment.
The change made may be in the form of a sudden reduction in salary for some or other reason, changes to commission structure or a reduction in the amount of commission paid, the removal of or reduction in some other benefits such as a bonus, change of the Employees basic salary to commission or something of that nature.
It may also include the sudden unilateral introduction of additional terms and conditions of employment, such as a condition that the salesperson will not be paid his commission until the client has paid for the goods sold, or something of that nature.
In terms of the common law, an Employer is not allowed to change the terms and conditions of employment with an Employee, UNILATERALLY. The change to the terms and conditions cannot be made without first consulting with the Employee on the proposed changes thereby obtaining the Employee’s consent to agree to the change. The proposed change must be done by mutual agreement between the parties concerned. One must be mindful of the fact that a Contract of Employment is a mutual agreement between two parties and the one party to the agreement cannot change the terms and conditions of that agreement without the consent of the other party.
Employers must note that by enforcing unilateral changes to the Contract of Employment, the existing Contract of Employment is in fact terminated and replaced by a new Contract.
An Employer may however unilaterally change the terms and conditions of an Employee’s Employment Contract if the new terms and conditions were not present in the original Contract of Employment.
The CCMA would only have jurisdiction to arbitrate the dispute arising out of unilateral changes to the terms and conditions of Employment on the substantive fairness of a dismissal (the reason for the dismissal)
In the event that Employees are faced with a threatened unilateral change to their Employment Contract, they are entitled to seek an interdict, under the Common Law, against the Employer. They can also sue for damages on the basis that the Employer has breached the Contract of Employment.
The other option that may be available to an Employee is to refer the matter directly to the Labour Court. If the change to the terms and conditions of employment affects a number of Employees, the Employees can embark on strike action after appropriate procedures have been adhered to as a set out in the Labour Relations Act 66 of 1995.
Section 64(4) of the Labour Relations Act suggests that the Employee or any Trade Union can refer the dispute to the CCMA or a Bargaining Council, and the Employee or Trade Union may require the Employer not to unilaterally implement the change to the terms and conditions of Employment, or if the Employer has already implemented the change unilaterally, the Employee or Trade Union may require the Employer to restore the terms and conditions of Employment that applied before the change.
The meaning of “unilateral” in the context of Section 64(4) does not mean “without consultation”; it means “without consent”.
In SAPU & another v National Commissioner of the South African Police Service & another [2006] 1 BLLR 42 LC, it was held that, while unilateral change is treated as a subject of collective bargaining in the context of Section 64(4), Employees are not prevented from pursuing their contractual remedies in the Labour Court or High Court in terms of Section 77(3) of the Basic Conditions of Employment Act 75 of 1997.
IN CONCLUSION:
Employers who force unilateral changes in an effort to cause an Employee to resign, or who force unilateral changes to try and get an Employee to toe the line, are playing with fire.
As can be seen, changes to terms and conditions of Employment is not a matter to be approached without careful forethought and planning, if the Employer wishes to avoid the Employees concerned exercising their right in terms of referring a dispute to the CCMA
(By – GERHARD DE VILLIERS-MöHR, HIGH COURT AND LABOUR COURT LITIGATION ATTORNEY AT DE VILLIERS-MöHR ATTORNEYS,CELL: 082 7744 267 EMAIL: devilliers-mohr@absamail.co.za)
