Don’t let employers change what was agreed

This is the time of year when school-leavers enter the marketplace vibrant and excited to start working life.

But they sometimes receive a rude awakening regarding the terms and conditions of employment, which are sometimes different to those agreed on or promised. For the uninformed employer, this could be the start of a legal battle it was not aware was possible.

Many unscrupulous employers take advantage of their employees by not complying with basic employment requirements provided for in legislation.

And many employees are not aware of legislation regulating, for example, daily/weekly working hours permitted, when overtime pay is required, overtime for work on weekends, paid leave, etc.

The Basic Conditions of Employment Act (BCEA), lays out employees’ entitlement regarding the above and many other terms and conditions.

Ignorant or unscrupulous employers often refer to new employees as “casuals” or “temps”, when their employment, in practice, and in law, is clearly otherwise.

For example, in terms of the Act, certain employment benefits are only excluded from employees working less than 24 hours a month. Those working more than 24 hours a month are legally entitled to paid leave etc.

Employees sometimes get a rude awakening when, after resigning and accepting a new job offer, the new employer reneges on the offer.

Case law, emanating from the Labour Relations Act, bestows legal remedies on such people. For example, and contrary to previous decisions, a person waiting to start a new job has been determined to fall under the statutory definition of an employee. Case law requires a contract of employment concluded before employment commences. Notwithstanding this statutory requirement for a contract or letter of appointment, other oral or documentary evidence also suffices.

For example, oral evidence on the existence and details of a job offer or a company/employment agency letter or SMS confirming a job offer and its principle terms is acceptable as proof.

Too often, employees resign on the strength of a new job offer made verbally, either through an employment agency or directly from an employer, only to find on joining that things are not so rosy.

In practice, the following are normally the thorny issues:

l Suddenly a probation period, or a restraint of trade, is included in the written contract of employment.

l The remuneration requested or envisaged and agreed to is less.

l The commission structure explained at the interview is less.

l An oral or written job offer is withdrawn after resignation and before starting the new job.

l The period during which annual leave must be taken, which was not discussed before, is not suitable at all, for example, it may say that leave may not be taken over the December/January period.

l The 13th cheque and performance bonus or share-option scheme now has onerous criteria, making it not so easily attainable.

Lately we have also seen employers, unbeknown to the employee, wishing to appoint a new employee on a three-month fixed-period contract, or not as an employee but as an independent contractor.

For employees, there are legal-technical avenues available to deal with these sorts of situations.

The legal approach will depend on each case’s circumstances.

Employees and employers should realise that, where a contract of employment has been concluded before actual employment commences, the person is defined as an employee and has the right to utilise the Labour Relations Act’s dispute resolution mechanisms.

The contract does not necessarily have to be an elaborate letter of appointment,it could be a mere letter offering a position.

Employees have different options in dealing with their dispute, depending on their circumstances.

For example, an aggrieved employee could resign constructively and claim damages for losses suffered. The company’s repudiation of its original offer by including some of these unacceptable provisions in a new contract of employment will justify this.

Employees are cautioned to first bring their dissatisfaction to their employer’s attention, preferably in writing, giving the employer an opportunity to remedy the situation before resigning.

Alternatively, an aggrieved employee could accept those terms with which he or she are in agreement and refuse to accept the changes the employer has initiated, declaring a dispute as an unfair labour practice based on the “unfair conduct by the employer relating to the provision of benefits to an employee”.

This often leads to dismissal and in such circumstances, employers frequently err procedurally, as well as not necessarily having a substantively fair reason to dismiss.

To eliminate misunderstanding, employers and employees are advised to regulate their contractual expectations and terms, in detail and in writing, before resigning and before making the job offer.

l Pierre Marais is managing director of the Labour Law Group. Contact him at 011 679 5944.