Employees often complain that the employer has made some unilateral change to the original terms and conditions of employment, without consulting the employee.
The changes made can take many forms, including:
– Reductions in salary
– Reduced hours of work
– Changes to commission structures
– Setting unreachable sales targets for bonus purposes
– Demotions
– Removing of benefits such as a bonus
– Reducing the provident fund benefits, etc.
The simple outcome of such changes is that these changes amount to a unilateral changing of the employment contract and may constitute an unfair labour practice. By enforcing unilateral changes, the existing contract of employment is effectively terminated, and substituted by a new contract.
Employers are warned that any significant variation in the terms and conditions of employment of an employee may well constitute a (unfair) dismissal in terms of section 186 of the Labour Relations Act. Generally, changes to terms and conditions of employment cannot be made without prior consultation with the employees on the proposed changes, and the employees’ agreement obtained.
This is because of the very simple reason that a Contract of Employment constitutes an agreement between two parties – the one party to the agreement cannot change the terms of that agreement without the consent of the other party.
The LRA allows the employee to refer the dispute to the CCMA or a bargaining council, and the referring party may require the employer not to unilaterally implement the change to the terms and conditions of employment or to restore the terms and conditions of employment that applied before the change.
Under certain circumstances such as if the changes are required due to the operational requirements, it is possible that, even on refusal of the employees to accept the changes, the employer may be entitled to embark on a restructuring process that might lead to retrenchments.
Always consult a reputable labour law practitioner to avoid what might prove to be rather expensive litigation if a proper process is not followed and the affected employees refer the matter to the CCMA.