IS AN EMPLOYER OBLIGED TO CONSULT BEFORE CHANGING POLICIES?
There was a policy at the employer that at retirement, normal or early retirement, contributions will be made for transport costs to an employee’s retirement address, provided that three quotations are given for consideration.
However, the policy underwent changes before members retired. These changes stipulated that the employer will no longer contribute to any transport costs.
Meetings were held and the change of the policy was communicated to employees.
POSITION IN TERMS OF THE LAW:
In terms of legislation, there is no obligation on the employer to hold intensive consultation with trade unions and/or employees regarding the changing of policies.
If it can be proven that the policy is part of the terms and conditions of the employee’s service contract and that the changing of it influences the remuneration and/or benefits of an employee, the employer is obliged to hold formal discussions and also consider alternative suggestions from employees.
Policies are a discretion exercised by the employer to maintain standards and uniformity in the workplace. Employers may review policies from time to time, to align it with legal requirements. The changing of it does not have to be discussed formally with employees. Policies should at least be accessible to employees and the change only needs to be communicated. It is the duty of the employees to familiarise themselves with the new policies.
In the abovementioned case, a right must be established once retirement occurs. Before retirement there exists 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” cannot be claimed.
Should the policy change after an employee retires and the employer refuses to pay the transport costs, it would be unfair because the right to the benefit had already been established.
However, it must be ensured that there is no collective agreement or even the existence of the constitution which requires that the employer is obliged to consult with the employee and/or his trade union 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) LTDRevelas J inter alia, who determined the following:
“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 be proved that a policy does not form part of any service contract, and there is no collective agreement or constitution that regulates changing of policies, the change to policies in the workplace is within the discretion of the employer and fair. The sole duty of the employer is to communicate the change and to ensure that the employees have adequate access to all policies. It is the duty of the employee to familiarise him-/herself with the employer’s policies.