Our issue this week involves an employee who has not been paid a salary for five months because of, says his boss, the global recession!
Our unfortunate reader was promised that the arrears amount would be paid in full once the world’s financial situation improves.
Having no money on which to live, the employee was forced to incur a tremendous amount of debt which he must now start paying back.
He wants to know what action he can take in order to recover monies owing to him, but without jeopardising his relationship with his boss, since he desperately needs his job.
I was dumbfounded when I read our reader’s e-mail.
His boss has simply not paid him for a lengthy period – and he has accepted the situation without a fight. Now, he finds himself in a very precarious position.
Few companies worldwide have not been affected by the recession, but imagine the chaos if everyone simply stopped paying their employees.
Frankly, this employer is guilty of “unilateral variation” in conditions of service. Simply put, he is in breach of the contract given to his employee on hiring him.
In some cases, employers suddenly reduce salaries or change commission structures or amounts and even reduce or remove other contractual benefits.
I’ve also heard of situations in which employers suddenly introduce unilateral additional terms and conditions of employment, such as the condition that a salesperson won’t be paid commission until clients have paid for goods sold.
Sadly, it seems that some employers make these changes in an effort to upset an employee and force him or her to resign. Other tactics may include, for example, setting unrealistic and unattainable sales targets.
All of this is unacceptable and employers would do well to remember that any significant variation in employment terms and conditions may constitute a dismissal in terms of section 186 of the Labour Relations Act (LRA).
By enforcing unilateral changes, the existing employment contract is effectively terminated and must be replaced with a new one.
Of course, this doesn’t mean that every unilateral amendment will be seen as dismissal. Rather that the employer wishes to continue the employment relationship, but on altered terms that have not been agreed to by the employee and where the employer has not consulted with the employee on the changes.
Generally, these changes cannot be made without consulting the employee first and obtaining his or her consent. Why is this?
Simply, a contract of employment constitutes an agreement between two people, so they must both agree on proposed changes.
So what can our reader do?
Firstly, it seems he cannot carry on without his salary, so there’s little hope for maintaining a good relationship with his boss if he decides to take the matter further.
Section 64(4) of the LRA suggests that he refers the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a bargaining council, where he can insist on restoration of his employment terms and conditions.
Our reader must be back-paid and his boss must decide to either keep him on or retrench him.
Other options are protected strike action – which I do not recommend – or suing his employer, forcing compliance with the original contract.
Whatever route chosen, our reader must communicate openly with his boss and try to reach an amicable solution.
Employers be warned – you are playing with fire by forcing unilateral changes in an apparent effort to hasten resignation.
Send your labour and injury on duty questions to firstname.lastname@example.org.
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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