Companies and the environments within which they operate are ever-changing. One of the results of such is that employers often find themselves in situations where alterations to employment conditions are required to keep up with the demands of the business.
The question many employers face because of such is what they can change from an employment perspective, what labour legislation prescribes, what best practice is and ultimately how much say they have over-regulating and amending employment conditions.
This short article attempts to address these questions and assesses first a legal consideration as to what aspects of the employment relationship can be changed, the legal considerations to implement and change and lastly recommendations as to best practice when implementing new policies and procedures in the workplace.
What employment conditions can be changed by law?
In the case of ICHAWU & Others v CCMA & Others (case C308/13, 29 July 2015), the Labour Court addressed the legal considerations to be made when dealing with a change in employment conditions. In the case the court addressed whether a change to a company’s shift roster and the employer’s subsequent instruction to adhere to such constituted an unfair labour practice. It raised the question of how much discretion employers have when “running” and “regulating” their business and to what point this infringes on employees’ rights to not have their terms and conditions of employment unilaterally altered.
To understand the legal standpoint, employers are advised to draw a clear line between terms and conditions of employment (as it was found to be in the case above) and workplace practices.
1.1 Terms and conditions of employment
Terms and conditions of employment, derived mostly from individual employment contracts are regarded as the "core terms" on which the employee accepted the job. These include salaries, working hours’ notice periods, leave days, etc. Terms and conditions are interpreted to be contractually agreed upon upfront and according to common law cannot be unilaterally changed without both parties consent.
1.2 Workplace practices
Workplace practices, on the other hand, are communicated and enforced collectively through (to the most part) company policies, codes and procedures. The purpose of a workplace policy is to enhance operational efficiencies, ensure a safe and non-discriminatory workplace. Leave policies, disciplinary codes, grievance procedures, and discrimination policies are some examples of such, wherein they serve as regulations of company rules, guidelines of acceptable norms of behaviour and specifications on the company’s conflict and disciplinary resolution process. In contrast to terms and conditions of employment, employers have more freedom and leeway when regulating and altering workplace practices and can essentially do so as long as the below guidelines are adhered to.
What does the law say when implementing policies and procedures?
Whilst employers have the right to implement policies and make unilateral decisions when it comes to company rules and regulations, this right is not without limitations. The Labour Relations Act, 66 of 1995 (LRA) must be consulted with before implementing policies and any company rule for that matter, so as to ensure the minim prescribed requirements are met. Without this, a policy will not be enforceable. The following must be addressed:
2.1 A rule must first and foremost be lawful, valid and reasonable;
This implies that companies cannot set arbitrary or unlawful rules and should be able to substantiate any rule with an operational requirement of the business. Substantiating a rule would entail linking it to either efficiency in operations or the health and safety or good harmony of the workplace. Furthermore, ensuring such rules is not found to be in contradiction to any contractual term of the contract or overriding labour statute.
2.2 Secondly, employees must be made aware of the rules;
Creating awareness of a rule necessitates an employer to clearly establish a position on a standard and then effectively and unambiguously communicating the standard required to all employees. To the most part, this communication would take the form of introducing a company policies and procedure. Or alternatively sending out a memorandum referring to or reiterating an existing standard. This is to be discussed further.
2.3 And lastly, the rule or standard must be consistently applied by the employer to all employees;
Companies are bound by precedent when it comes to applying discipline and should be mindful of the implications that the current decision may have on future transgressions. This is a point on which many employers fall foul and could result in unfair labour practices or even unfair dismissals.
3 What is best practice when implementing policies and procedures?
With reference to the specifications prescribed in the Code of Good Practice (LRA), the following practical guideline is recommended for employers when drafting and implementing company policies and procedures.
3.1 Ensure the condition is a workplace practice
First and foremost employers need to ensure that the area they seek to regulate is identified as a workplace practice and not a term and condition of employment. Are we looking to regulate an area of the work and enforce a company rule, or are we attempting to change a core condition on which the employee accepted the job?
This first point can become highly technical so approach your LabourNet consultant should you need any further clarification and make sure you don’t fall foul of unfair labour practice.
3.2 Clarify the purpose of the policy
As per the LRA, rules and regulations need to be substantiated by a business requirement. Failing to do so is not only in contravention to the LRA, but in a business context, there is nothing worse than an unnecessarily, overly regulated workplace with policies that serve no purpose. The purpose of policies is to enhance efficiencies and reduce risk. Not to create a culture of compliance for the sake of compliance.
Ask yourself whether the rule is reasonable and valid. Further that it serves a business interest of either increasing efficiency, or is required to maintain good order and ensure the safety of the workplace.
3.3 Cleary define a position
Clearly defining the company’s position on a standard is a vital requirement of enforcing any policy or rule. The LRA requires employers to create awareness and ensure a clear understanding of the company standard. Ensure there is no ambiguity in what the company’s stance is on a matter. If you are to implement a leave policy, when do employees need to bring a medical certificate, who should they phone in to, is WhatsApp’s accepted? These are the questions that any comprehensive leave policy should address and will seriously affect the company’s ability to enforce a standard consistently.
Keeping a policy clear, specific and measurable is key.
3.4 Create Awareness
Communication, when implementing a new policy or creating awareness of changes made to an existing one, is not only required by the LRA but from a success of implementation perspective further entails elements of change management.
Legally, an employer needs to be able to prove an employee was made aware, or could reasonably have been made aware of any company policy and procedure when looking to enforce such. Employers should take note that this is often raised as a defence in disciplinary hearings. Special care should, therefore, be taken when implementing and recording the implementation of all company policies and procedures.
Further to the legal requirement, employers should from a best practice perspective be cognisance of employees resistant to change. During policy implementations, due to the uncertainty, there is often times resistance from employees. The success of a policy implementation is heavily dependent on change management and the ability of an employer to communicate the rationale behind a policy or standard as well as make clear the benefits of the policy to employees. It is after all in everybody’s best interest that the company operates efficiently and that a harmonised safe working environment is maintained.
The final point of consideration is consistency both in the application of policies and standards, as well as the application of sanctions to contraventions of such. As explained previously this is where a lot of employers fall short.
Employers should be very mindful of maintaining their “position” detailed in company policies and procedures and further look to adhere to the recommended sanction set out by internal disciplinary codes. There are always certain exceptions, as the entirety of a given situation (aggravating and mitigating circumstances) needs to be taken into account. But employers should be very mindful that any deviations from the code or policy would need to be substantiated and must stand up to scrutiny should they need to be defended at the CCMA.
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