To the extent that changes to employees’ working conditions are necessitated by this new code the employer has the right to implement such changes provided that this is done in line with the code’s requirements.
However, where the employer wishes to make changes to working conditions that are not necessitated by the dangers of Covid, it is necessary for the employer to make a thorough and genuine attempt to obtain the employees’ consent for the changes to be made and to prove that these changes are crucial to the business’s operational requirements.
An employee is entitled, in terms of Section 77(3) of the Basic Conditions of Employment Act, to ask either the civil courts or to the Labour Court to determine any matter concerning a contract of employment. As a contract can be enforceable even if it is not in writing, the employee can even take a dispute relating to an oral or tacitly agreed contract to these courts. Unilateral changes to working conditions that breach employment contracts can be struck down by the courts. In addition, employees, if dismissed for refusing to accept changes to their employment conditions, can, in some cases, sue the employer for automatically unfair dismissal.
Furthermore, under the law:
· It is not a disciplinary offence for an employee to disobey an unreasonable instruction to work according to new terms and conditions
· In a takeover of a going concern the employer is compelled to retain the terms and conditions of employment of the employees concerned
· Unfair acts on the part of the employer as regards employee benefits are prohibited.
However, what if the employer needs to change the work circumstances due to its operational requirements? What if, for example, circumstances are such that a new shift system is required to satisfy the needs of a key client, but the employees are not willing to agree to the change? Is the employer entitled to go into a retrenchment process with a view to hiring employees willing to accept the new terms and conditions of employment?
In the case of CWIU and others vs Algorax (Pty) Ltd) (2003 11 BLLR 1081) the employer needed to switch to a new shift system, but the employees refused to accept this. The employer then retrenched its employees but consistently said that it would re-employ them if they would change their mind and agree to the new shift system. The Labour Appeal Court found that:
· The retrenchments could have been avoided or minimised if the employer had got rid of a number of contractors
· The employer’s firm and consistent statements that the employees would be taken back if they agreed to the new shift system showed that the employer had ulterior motives
· The dismissals were not genuine retrenchments but were instead a ploy to get the employees to agree to a change in their conditions of employment
· The dismissal was therefore automatically unfair in terms of section 187(1)(c).
· All the employees were to be re-employed with effect from the date of the court order.
In the case of Pedzinski vs Andisa Securities (Pty) Ltd (2006, 2 BLLR 184) The employer informed the employee that, if she did not agree to extend her working hours to full day she would be retrenched. When she was retrenched she took the employer to the Labour Court where it was decided that the employee’s dismissal was automatically unfair because she had been threatened with retrenchment in order to coerce her into extending her working hours. The employer was ordered to pay the employee compensation equivalent to 24 months remuneration as well as the employee’s legal costs.
While the making of such changes is often justified, employers need to be extremely careful as to how they go about this. Therefore, before they begin to implement any changes that affect employees, employers need to get advice from a labour law expert who also understands practical operational needs.
The need to implement essential changes in a fair manner is not only due to dangers of Labour Court litigation. Incorrectly implemented changes made to improve profitability can backfire badly. Therefore, a more important reason for fairness in making changes is the need to avoid conflict in the workplace that can result in employee resentment, loss of good workers, strikes, sabotage and the loss of productivity.
To attend our 27 May webinar on MANAGING CONFLICT IN THE WORKPLACE please contact Ronni on [email protected] or 0845217492.