I received an e-mail from a reader who had been transferred by his company from Durban to Port Elizabeth four years ago.
He worked for the firm for eight years in Natal before starting in a new position in the Eastern Cape.
The reader says he was verbally informed of his new duties, but, upon commencing his new job, there were a number of additional responsibilities.
He discussed the matter with the managing director, who produced a letter which he (the MD) said had been hand delivered to and accepted by our reader prior to his transfer.
The letter states that he had to return a signed copy to the human resources department if he agreed to its contents.
Our reader says the letter he was shown, had not been signed by him and he requested to see a copy of the signed one. To this date, it has not been produced.
Our reader still does not have a letter of appointment or a clear job description. The manager who initiated the transfer told our reader he could not remember what he had offered him and he has since left the company.
Our reader wants to know if his employer can now give him a job description that differs from the initial verbal agreement.
He has every right to request a copy of the letter which is said to have been signed by him in acceptance of the terms and conditions of his new position. However, his employer also has the right to change working practices, provided that these changes do not alter the employee’s contractual rights.
Because of the personal nature of a contract of employment, parties have to agree on the essential terms thereof. These are fixed in a sense that neither party may unilaterally change them unless the original contract makes provision for it.
If it is a mere change in work practice, it would be permissible. But, if it amounts to a contractual change, the employer must first consult with the employee.
Such changes are not necessarily allowed and it will depend on the facts of each case whether they are acceptable.
The outcomes of such discussions may vary, especially if the changes involve work of a nature that was not initially contemplated by the parties, or if it involves a reduction in salary or status.
There is a fine line between unilateral variations and contractual provisions. The description of work to be performed by employees should not be inflexible, but the fundamental nature of their duties should not be altered.
Employees don’t have the right to preserve their working obligations for the duration of their employment. It is only if the changes are of such a dramatic nature that the employee undertakes an entirely different job, that he or she has the right to refuse the new duties – in the required manner.
Although our reader says he has not been given any specific guidelines with regard to his additional responsibilities, the focus should be on the core content of his job. This would be the dividing line between refusal to comply with a unilateral variation or, on the other hand, insubordination or breach of contract.
A mere increase in workload is also not regarded as a variation of the terms of a contract, provided they are reasonable and of a temporary nature.
According to the Labour Relations Act, employees have a right to strike in order to compel employers to restore their original terms and conditions of employment.
This however is not recommended and I therefore advise our reader to first discuss the issue with his direct manager.
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Booysen & Rossouw Attorneys in Port Elizabeth specialises in labour related legislation. The firm also covers injury on duty cases as well as all other aspects of the law.
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