Can an employer unilaterally implement changes to its terms and conditions of employment? If the employees haven’t been given the opportunity to negotiate these terms, don’t agree with the changes, and therefore decide not to comply with the changes, does the employer have the right to commence disciplinary action against them?
Here’s a case that the Labour Court was recently asked to adjudicate on. Suid-Kaap Stene CC encountered financial difficulties. In an attempt to cut costs it decided to implement short-time by reducing the five-day working week to a four-day working week, with the employees’ wages being cut proportionately. The employer initially consulted with the employees and the trade union but they were unable to reach any form of agreement. So the employer decided to introduce the new short-time measures nonetheless. The measures were introduced by way of a new roster, and the employer instructed the employees to report to work in terms of this roster. When the employees refused the employer commenced disciplinary action. In due course, nine employees were dismissed for various reasons, all related to their refusal to abide by the new four-days per week roster.
The nine disgruntled employees took the matter to the CCMA. The CCMA held that the dismissals were fair. In declaring the dismissals to be fair, the CCMA noted the following:
- Despite the fact that there was an ongoing and as-yet unresolved dispute surrounding the new measures, the employer had issued valid instructions to the employees, which the employees had failed to comply with; and
- the employer had followed a proper procedure comprising progressive disciplinary measures.
The trade union took the CCMA’s decision on review to the Labour Court. The primary question before the Labour Court was not whether the employees had followed the employer’s instructions (they very clearly had not). The primary question was whether the instructions issued by the employer were reasonable. Within the facts of this particular case, the Labour Court held that the employer’s instructions were not reasonable because they were based on unilateral changes to the conditions of employment that had not been agreed to by the employees, and accordingly the employees were entitled to refuse to comply. It follows, then, that their dismissal was unfair.
When an employer tries to unilaterally change conditions of employment, the employees could:
- Require the employer to restore the status quo;
- Apply for an interdict, prohibiting the employer from implementing the new terms; or
- Refuse to comply with the new terms, and continue to work in terms of the old terms and conditions of employment.
When an employer wants to change conditions of employment, the employer could:
- Lock the employees out until agreement is reached; or
- Commence retrenchment proceedings (assuming the changes that the employer wants to impose are operational in nature). During the course of the retrenchment proceedings the employer’s proposed changes can be tabled, along with any other options that may be identified. If no viable alternatives are agreed to then the employees can be dismissed.
Thus it is clear from this case that an employer cannot simply change material conditions of employment without having obtained their employees’ agreement. Employers are advised to have their Employment documentation in place, maintain an open and honest channel of communication with their staff, and ensure that they act within the parameters of South African labour law.
Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.