Solidarteit Wêreld
2019 – Uitgawe 6 Jy en die Reg
Is an employer obliged to consult before changing policies?
Deur Michelle | 13 November 2019

An employer had a policy in place stipulating that employees who retired, whether normal or early retirement, qualified for transport costs to their retirement address, provided that three quotations were submitted. The policy was however changed before the employees retired, to the effect that the employer would no longer contribute to any transport costs. Meetings were held and the policy change was communicated to the affected employees.

The question arose whether the employer was obliged to consult with the employees before it decided to change the policy.

In terms of legislation, there is no obligation on an employer to hold intensive consultation with trade unions and/or employees regarding the changing of policies. If employees can however prove that a policy is part of the terms and conditions of their service contract and that the change will influence their remuneration and/or benefits, the employer is obliged to hold formal discussions and to consider alternative suggestions from employees.

Policies are drawn up at the discretion of the employer to maintain standards and uniformity in the workplace. Employers may review policies from time to time in order to ensure alignment with legal requirements. They need not formally discuss any changes to policies with employees. Policies should however be accessible to employees and once the employer has communicated the changes, it is the duty of the employees to familiarise themselves with the new policies.

In the case described earlier, a right would have been established once retirement occurred. Before retirement, there would have existed no right for an employee to claim this “benefit”. If the policy change was already implemented before an employee retired, no right was established, and the “benefit” could not be claimed. If the policy was changed after an employee retired and the employer then refused to pay the transport costs, it would have been unfair because the right to the benefit had already been established. However, this would apply only if there was no collective agreement or constitution which required the employer to consult with employees and/or trade unions about the change in policy.

In conclusion, I refer to the matter of STAFF ASSOCIATION FOR THE MOTOR AND RELATED INDUSTRIES (SAMRI) v TOYOTA OF SA MOTORS (PTY) LTD [1] Revelas J inter alia, where the following was determined:

“Any variation to an employee’s salary, irrespective of whether it is increased or decreased, amounts to a change in the basic conditions of employment and cannot be affected unilaterally. The use of a motor vehicle by an employee granted by an employer is my view a quid pro quo for the work rendered and is a form of remuneration. It is in fact part of the employee’s salary albeit on a somewhat different basis. One can imagine that the motor vehicle benefit scheme by the Respondent was and still is a serious consideration for several prospective employees when deciding whether or not to take up employment through the Respondent Company. Any changes to this benefit have the result that the employee’s salary or remuneration package is potentially or in fact affected and therefore constitutes a change to the employee’s terms and conditions of employment.”

If it can thus be proved that a policy does not form part of any service contract, and if there is no collective agreement or constitution that regulates the changing of policies, the employer may make changes to policies in the workplace at its discretion and it would be regarded as fair. The sole duty of the employer is to communicate these changes and to ensure that the employees have adequate access to all policies. It is the duty of employees to familiarise themselves with the employer’s policies.

[1] 1997 (18) ILJ 374 (LC)

  •  
  •  
  •  
Redakteursbrief

Met die Solidariteit Beweging se Toekomsberaad op 10 Oktober vanjaar het Solidariteit die laaste deel van 2019 met ’n groot hoogtepunt aangepak. Dit was ’n heerlike geleentheid waartydens die energie en opgewondenheid tasbaar was onder die groep mense wat saam groot dinge vir ons toekoms help beplan. Tydens die vorige Toekomsberaad, wat in 2015 gehou […]


Registreer / Register

Oops! We could not locate your form.

Maak toe / Close