A contract of employment is an agreement between two parties in terms of which one of the parties (the employee) undertakes to place his or her services at the disposal of the other party (the employer) for an indefinite or determined period in return for remuneration.
Once an employment contract has been concluded, parties to the contract are restrained, restricted, or hindered from taking unilateral actions, especially those that are detrimental to the other party’s interests.
This is not to say that an employment contract cannot be varied. An employment contract is not cast in stone. As economic realities change, the employer may want to restructure or reorganise business in order to maintain competitiveness in a globally changing world.
This is the essence of managerial prerogative — the right of the employer to control activities of employees in the workplace. As that happens, it is inevitable that the employment relationship has to change.
Employees are expected to adapt to new working methods or techniques. It is legally recognised that the employer may unilaterally vary the terms of the employment contract such as the duties performed by the worker, working practices, the location of work and other aspects of the employment relationship, provided that such changes do not alter the employee’s contractual rights.
This article focuses on the variation of employees’ duties and the legal implications. It is important to note that such variation must not result in substantial downgrading of status or dignity of the employee.
According to John Grogan in Workplace Law, whether variation is permissible or not permissible depends on the facts of each case. It is not permissible to vary the contract in such a way that the employee’s work now involves those responsibilities not initially contemplated by the parties when the original contract was done. It is generally believed that any variation above 20% of the employee’s normal duties becomes substantial enough to require the consent of the affected employee.
Statutes such as the Labour Act and Case Law (Labour Court, High Court and Supreme Court judgments) have contributed to the limitation of the managerial prerogative in as far as variation of employees’ duties are concerned. This is meant to address the unequal balance of power between employer and employees in an employment relationship.
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In Cresswell v Board of Inland Revenue (1984), judge Justice Walton held that “an employee was expected to adapt to new working methods and techniques introduced in the course of his employment, provided . . . the nature of work did not alter so radically that it was out of the contractual obligations of the employees”.
Similarly, in Mauchle (Pty) Ltd t/a Precision Tools v NUMSA & Others (1995), the Labour Appeal Court of South Africa held that “employees do not have a vested interest to preserve their working obligation completely unchanged from the moment they first begin work”. In this case, employees were required to operate two machines each, instead of one. Justice Myburgh held that “it is only if changes are so dramatic as to amount to a requirement that the employee undertakes an entirely different job that there is a right to refuse to do the job in the required manner”.
From the cases cited above, it is clear that the courts do not regard a mere increase in the volume of work as a variation of an essential term. The change has to be so “dramatic” and “radical” for the courts to interfere with it. Local courts have also reinforced that notion.
In Masawi v Silver Ranch (Pvt) Ltd (LC-H-38-2004), a headwaiter refused to serve refreshments to guests in the absence of ordinary waiters on the ground that this demeaned him in the eyes of his subordinates and guests. He was dismissed. The Labour Court upheld the dismissal. On a different note in Muchakata v Netherburn Mine (1996), a security officer was ordered to sit in a disciplinary committee. When he refused to do so, the employer charged him for disobeying a lawful order and dismissed him. The Supreme Court adjudged the dismissal to be unfair because there had been a unilateral and substantial variation of the employment contract by the employer.
The employment relationship is not frozen in a contractual straitjacket. The employer has the right to alter the work that the employee is required to do, but not to such an extent that the new responsibilities are no longer of the kind they were employed to do in the first place.
Isaac Mazanhi is a labour analyst. He writes in his own capacity. He can be contacted on e-mail: [email protected] or cell: 0773 063 653
