“Our greatest weakness lies in giving up. The most certain way to succeed is always to try just one more time.” – Thomas Edison
Like all new beginnings the start of a new employment relationship comes with a host of emotions, mostly good. You receive the offer of employment from your prospective employer, discuss and agree on the terms and eventually sign and return the offer of employment. Let’s get this show on the road! Everything seems to be going well for the first few months, except for the odd and seemingly once off request by your manager to perform certain duties that do not form part of your job description. At first you do not have a problem with that because you want to help out wherever you can. As time goes by these requests become more and more frequent until it actually appears that you are now permanently performing duties that were not agreed upon at the start of the employment relationship.
Performance of Instruction without Delay
In the day to day running of a company there may be times where your manager requires you to perform certain functions that fall out of the scope of the agreed terms of employment. This may happen once or twice without it being an issue, however what happens when this becomes a regular and constant feature of the employment relationship?
Would this constitute a unilateral change in the terms of employment?
Before we answer these questions we need to place into context and define what would constitute a unilateral change.
What is a Unilateral Change in the Terms of Employment?
The Latin root, unilateralis, is a combination of the prefix uni, meaning “one,” and the suffix latus, meaning “side;” thereby to make a word that means “one-sided.” A unilateral change in the terms of employment, is evidenced by the employer varying the terms of employment on his or her own accord without the consent of the employee.
According to the Labour Court in the matter of Van Greunen v Johannesburg Fresh Produce Market (JS 175/07)  ZALC 27;  7 BLLR 785 (LC) the definition of a unilateral change in the terms of employment can go as far a simple negative change in the rank or position of an employee by the employer.
Can an Employer Unilaterally Change the Terms of Employment?
Now to answer the question as to whether an employer can effect such changes, the simple answer is: No.
The Labour Appeal Court in Mazista Tiles (Pty) Ltd v National Union of Mineworkers and Others (JA52/02)  ZALAC 16 held that, “An employer who is desirous of effecting changes to terms and conditions applicable to his employees is obliged to negotiate with the employees and obtain their consent. A unilateral change by the employer of the terms and conditions of employment is not permissible.”
The decision in this matter illustrates that there is a need for an employer to, at the very least, engage with an employee regarding any proposed changes to the terms of employment; once there is consensus as to the new terms and conditions, such conditions must be reduced to writing and signed by both parties to be valid and enforceable.
There are circumstances where one can be reasonably expected to accommodate the certain changes in the terms of the employment however when such now effectively constitutes a unilateral change or variation of the terms of employment, such an employer seeking to give effect to the change in the terms of employment may be prevented from implementing the changed terms or be required to restore the terms prior to the change.
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