To change the Ts and Cs

The employer’s primary objective is to enhance productivity while fostering a healthy working environment. From time to time, however, employers may feel that certain terms and conditions of employment should be amended to meet evolving workplace requirements. This raises an important question: may an employer implement such changes without consulting affected employees?

The short answer

No. An employer may not unilaterally change the terms and conditions of employment. Any change requires the employee’s consent.

The correct process

When contemplating changes, an employer should:

• Inform employees of the proposed amendments
• Allow them reasonable opportunity and time to prepare
• Consult meaningfully with those affected to obtain their views
• Aim to reach consensus and confirm any agreement in writing

Consultation is not a mere formality and it is always best to obtain legal advice before initiating a consultation process. Labour legislation often requires specific procedures, timelines and discussion points, particularly when the proposed changes relate to cost-saving measures, such as salary reductions or possible retrenchments.

Risks of non-compliance

If an employer proceeds unilaterally, employees may refer a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA provides employees with a platform to challenge unlawful or unfair changes, protecting their rights and ensuring workplace fairness.

Common risk areas for employers

The most frequent unilateral changes (and sources of disputes) include:

• Working hours – e.g. reducing working hours and salary, or introducing short time
• Remuneration – e.g. reducing salary or benefits (cell phone, medical aid, fuel allowance, pension fund, etc.), or amending the conditions on which bonuses are payable (thirteenth cheque, performance based)
• Duties – e.g. increasing or reducing an employee’s responsibilities

Any such changes, however minor they may seem, cannot be implemented without consultation and consent as required by law.

Written vs. implied terms

Even where an employee has no written employment contract, the position remains the same. Employment terms may be:

• Express (contained in contracts), or
• Implied (arising from collective agreements, established workplace customs or practice, or legislation)

Implied terms can be proven through agreements, past practices, or testimony from employees and managers.

Final word

The law strictly prohibits unilateral alterations to employment terms. Employers are strongly advised to:

• Always consult with employees
• Obtain written agreement
• Seek expert legal guidance before implementing any change

This approach reduces legal risks, ensures compliance, and helps maintain a fair and productive workplace.

Contact the LWO for any advice or assistance!

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