An employment contract is purely consensual, the parties may agree on whatever terms they wish. However these terms must be consistent with the nature of the employment relationship and may not be illegal or less favourable than the Collective Agreement of the National Bargaining Council for Hairdressing, Cosmetology, Beauty, and Skincare Industry and Basic Conditions of Employment Act’s (BCEA) minimum employment standards. Changes in the Collective Agreement or BCEA legislation will normally automatically supersede any provision in the contract that is less favourable to the employee.
Once the employer and employee have agreed on the terms of the contract, its terms are fixed. Neither party may unilaterally (i.e. without consent) change the terms. An employer cannot without agreement change an employment contract even if the change is to the employee’s advantage. However, an employer may change working practices, provided that such changes do not alter the employee’s contractual rights.
The employer and employee can change (by mutual agreement) the terms and conditions of an employment contract at any stage however you cannot compel an employee to accept such demands. When the employer threatens the employee with dismissal or subjects the employee to some other form of duress if they do not agree to the change, then under the Labour Relations Act (LRA), dismissal of the employee constitutes an automatically unfair dismissal.
If you implement such changes unilaterally (without the consent of the employee) you will be faced with a dispute, a claim for breach of contract or a constructive dismissal claim (resignations due to the employer making continued employment impossible).
This does not mean that an employer is totally at the mercy of an employee once a contract has been signed and that it is impossible to amend such contract or employment conditions. Where a good reason exists for such changes and employees do not agree to the changes, the employer will have to follow the provisions of section 189 of the LRA (retrenchment procedure). In terms of these provisions, it is possible to legally terminate employment due to the operational requirements of the business.
Therefore, when changing an employees terms of employment, you should first attempt to reach consensus (without duress) prior to making any changes to the contract or conditions of employment. In absence of their consent you should not effect any changes, but if it remains an operational need and you are able to show the detrimental effect of not implementing the changes, you should consider the retrenchment procedure.
You are welcome to contact an EOHCB representative to discuss the process if you wish to make changes to your employees conditions of employment.
