Any changes to terms and conditions of employment of employees cannot be implemented by an employer on its own and/or force changes or new terms and conditions onto employees.
Consent
This principle emphasizes the need for a negotiated process where affected employees are involved in discussions about the proposed changes. Employee consent implies an active agreement, ensuring that changes are not imposed without their input. Only when the nature of the job is drastically altered can it be said that there has been a unilateral change to the contract of employment, justifying such actions without prior consent.
If an employer makes unilateral changes without securing employee consent, employees have the right to declare a labour dispute with the Commission for Conciliation, Mediation, and Arbitration (CCMA). This legal recourse aims to restore the original terms and conditions of employment. The CCMA provides a platform for employees to challenge unjust changes and seek redress, thereby upholding their rights and maintaining fairness in the workplace.
Operational Business Rationale
However, in certain circumstances, changes in terms and conditions of employment may be necessary to ensure the survival of the organization or to enhance its competitiveness and efficiency. Economic pressures, technological advancements, and market demands might necessitate such changes. Within the existing labour dispensation, there are mechanisms to effect these material changes lawfully and fairly. These mechanisms are designed to balance the interests of both the employer and the employees, ensuring that necessary changes are implemented without compromising employee rights.
To justify changes, there must be a legitimate operational or business rationale. Employers must provide clear and compelling reasons for the proposed changes, demonstrating that they are essential for the organization’s continued viability. Employees who remain intransigent in the face of such compelling reasons for change might find themselves at risk of retrenchment. However, retrenchment must follow a proper consultation process between the parties. This process includes informing employees about the potential retrenchment, providing reasons, exploring alternatives, and seeking to reach a consensus.
Consultation
The consultation process is critical to ensuring that retrenchments, if unavoidable, are conducted fairly and lawfully. Specific procedures must be implemented by the employer to effect a fair and lawful retrenchment, as stipulated by labour laws. These procedures include fair selection criteria, adequate notice, and severance pay, among others. Adhering to these procedures helps mitigate the negative impact on affected employees and ensures compliance with legal standards.
Open Communication
To reiterate, changes to terms and conditions of employment cannot be made without prior consultation with the employee on the proposed changes. The consultation process should be utilized by both parties as a tool towards progress and efficiency. This collaborative approach encourages open communication, allowing employees to voice their concerns, ask questions, and provide feedback. It also enables employers to explain the necessity of the changes and address any misunderstandings or apprehensions.
Once the employer obtains the consent of the employee, the amended terms and conditions of employment must be documented in writing, typically as an addendum to the employment contract. This written documentation ensures clarity and serves as a reference for both parties, preventing future disputes about the agreed terms. Clear and transparent communication, along with written agreements, fosters trust and helps maintain a positive working relationship.
Conclusion
In summary, while changes to employment terms and conditions may be necessary, they must be approached through proper consultation and negotiation. Employers must respect legal frameworks and the rights of employees, ensuring that any changes are justified, communicated clearly, and agreed upon by both parties. This balanced approach promotes fairness, efficiency, and mutual respect in the workplace.
