A dispute often lodged at the CCMA that 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 or an increase in working times without overtime paid, 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, 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. It is possible that some of these unilateral changes could also fall under the heading of unfair labour practice.
You will do well to remind yourself that any significant variation to reduce or make less favourable to the terms and conditions of employment of an employee may well constitute a dismissal in terms of section 186 of the Labour Relations Act. Put differently, by enforcing unilateral changes, the existing contract of employment is effectively terminated, and substituted by a new contract which has not been agreed to by the employee and where the employer has not consulted with the employee on the changes.
Generally, changes to terms and conditions of employment cannot be made without prior consultation with the employee on the proposed changes, and the employee's agreement obtained. This is because of the very simple reason that a Contract of Employment constitutes an agreement between two parties and the one party to the agreement cannot change the terms of that agreement without the consent of the other party. To do so would place the party making the change in breach of contract.
Section 64 (4) of the LRA suggests that the employee can 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, if the employer has already implemented the change unilaterally, the referring party may require the employer to restore the terms and conditions of employment that applied before the change, with back pay.
If the terms and conditions of the original employment contract are to be changed because of changed operational requirements of the employer, it is possible that, upon refusal of the employees to accept the changes, the employer may, under certain circumstances, be entitled to embark on retrenchment procedures. However, that does not mean that it is a simple matter of a refusal of acceptance by the employee may immediately be followed by retrenchment of that employee. As in all cases, specific procedures are to be followed.
Manny Galanakis
