Introduction
The employment contract has always been one of the foundations of the employment relationship. It tells us what the employee is employed to do, where the employee will work, what hours will be worked and what remuneration will be paid.
But there is a growing problem: the workplace is changing faster than the employment contract.
Many employment contracts still describe a workplace that no longer exists.
An employee may have been appointed to work from an office from 08h00 to 17h00, Monday to Friday. Today, that same employee may work from home several days a week, start earlier or later, attend meetings virtually and perform duties that were never contemplated when the contract was signed.
The contract remains unchanged.
The workplace has not.
This raises an increasingly important question for employers: How much can an employment relationship evolve without formally changing the employment contract?
The Contract Versus Reality
Employment relationships are not static. Businesses restructure, technology changes, customers’ expectations change and jobs evolve.
An employee appointed ten years ago may be performing a substantially different version of the same job today.
That does not mean that every change requires the employer to renegotiate the employment contract. Employers have a legitimate managerial prerogative to organise their businesses and determine how work should be performed.
But there is a line.
The difficulty is identifying where that line lies.
Remote Work Has Changed the Workplace
Perhaps the clearest example is remote and hybrid working.
During the COVID-19 pandemic, working from home became necessary for many employees. In many organisations, however, temporary arrangements subsequently became permanent — or at least semi-permanent.
Employees became accustomed to working from home on certain days. Meetings moved online and managers became comfortable managing employees who were not physically present.
The practical working arrangement therefore changed, even where the employment contract did not.
Can an employer simply instruct employees to return to the office because the contract says that their workplace is the employer’s premises?
The answer will depend on the circumstances.
The written contract is important, but so too are the actual arrangements adopted by the parties, any relevant policies, the reason for the change and the extent to which the existing arrangement has become established.
The longer a particular arrangement continues, the more difficult it may become to regard it as merely a temporary concession.
Flexibility Creates Uncertainty
Working hours present a similar challenge.
Many employers now operate with considerably greater flexibility than traditional employment contracts suggest.
An employee might start at 07h00 one day and 09h00 the next. Another may work longer hours during busy periods and take time off when things are quieter.
This can work perfectly well — until there is a dispute.
An employee claims overtime. The employer responds that the employee has always had flexibility and was expected to manage their own time.
Or an employee takes time off after working additional hours and the employer says: “We never agreed to that.”
The problem is not necessarily that flexibility is unlawful.
The problem is that informal flexibility can become difficult to distinguish from an established term or practice of employment.
Employers should therefore be cautious about arrangements that continue indefinitely without being properly documented.
The Modern Working Day
Technology has also blurred the traditional working day.
An employee sends an email at 20h00, answers a WhatsApp message at 21h30 or completes a report over the weekend.
Was this work? Was it authorised? Was it overtime?
Technology makes it possible to work almost anywhere and at almost any time. But having a laptop or cellphone does not mean that an employee is permanently available.
Employers should establish clear expectations regarding working hours, availability and overtime, and ensure that these expectations are consistent with the applicable legislation and the employment contract.
Jobs Are Changing Too
The issue is not only where and when employees work. It is also what they do.
Technology and artificial intelligence are changing jobs rapidly. Employees are increasingly expected to use new software, perform additional functions and work in ways that did not exist when they were appointed.
A job title may remain unchanged while the work itself evolves substantially.
Employers are generally entitled to adapt duties as businesses change. But there is a difference between adapting an existing job and fundamentally changing the nature of the employment relationship.
The distinction becomes particularly important where the change affects remuneration, status, responsibilities, working hours or the employee’s fundamental role.
What Should Employers Do?
The answer is not to rewrite employment contracts every time something changes.
Instead, employers should recognise that employment relationships need to be managed continuously.
Where a significant workplace change becomes permanent, consider whether it should be formally documented through an amended contract, policy, job description or written agreement.
Employers should particularly clarify:
- hybrid and remote-working arrangements;
- working hours and availability;
- overtime and time-off arrangements;
- changes to job responsibilities; and
- whether a particular arrangement is temporary, discretionary or permanent.
Most importantly, employers should avoid allowing an informal arrangement to continue indefinitely simply because nobody has yet challenged it.
The Employment Contract of the Future
The traditional employment contract assumed a relatively stable relationship: one employer, one workplace, fixed hours and a defined job.
The modern workplace is increasingly different — hybrid, flexible, technology-driven and constantly evolving.
The employment contract remains important, but it cannot operate in isolation from the reality of the workplace.
The real risk is not that an employment contract is old.
It is that the employment relationship has changed so substantially that the contract no longer accurately describes the reality.
And when a dispute arises, the question may no longer simply be:
“What does the contract say?”
It may also be:
“What have the parties actually agreed to do?”
Sources
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Basic Conditions of Employment Act 75 of 1997
Section 9 addresses ordinary hours of work; section 10 covers overtime, including agreement requirements and paid time off in specified circumstances; sections 11 and 12 address compressed working weeks and averaging of working hours. Sections 14–17 regulate meal intervals, rest periods, Sunday work and night work. Section 29 addresses written particulars of employment and their revision when relevant details change. -
Labour Relations Act 66 of 1995 — Sections 64(4) and 64(5)
Section 64(4) provides a mechanism through which employees or a trade union referring a dispute about a unilateral change to employment terms may require the employer not to implement the change, or to restore the previous terms during the prescribed period. Section 64(5) requires compliance within 48 hours of service of the referral. -
Apollo Tyres South Africa (Pty) Ltd v NUMSA and Others (D68/12), 15 February 2012
The Labour Court considered whether changes to shift patterns constituted unilateral changes to employment terms or changes to work practices within management’s prerogative. The judgment examines the contractual and collective-agreement provisions governing the arrangements. -
RAM Transport (SA) (Pty) Ltd v SATAWU [2011] ZALCJHB 3; (2011) 32 ILJ 1722 (LC)
The Court distinguished contractual employment terms from work practices when considering changes to shift starting times. It also discussed A Mauchle (Pty) Ltd t/a Precision Tools v NUMSA [1995] 4 BLLR 11 (LAC), supporting the distinction between changes to how work is organised and changes to contractual terms.
