Monday | 04 May | 2020
Unilateral amendment of conditions of service (salaries) following the President’s call/challenge to relinquish a portion of your salary for the Covid-19 Solidarity Fund.
After Pres. Ramaphosa’s announcement that he and his Cabinet will relinquish 30% of their salaries to be donated to the government’s Covid-19 fund, it came to light from inquiries we received that several companies have made the decision on management level to reduce the salaries of staff members for this reason. If the decision was made and implemented without consulting the employees and getting their consent, this decision by the management of a company may be regarded as unilateral and unfair under certain circumstances.
Common law provides that the employer may not unilaterally amend the terms of a contract. That would amount to breach of contract, with the result that the employee may be able to withdraw from the contract or take action to claim damages.
The decision by the President and ministers to reduce their salaries, and the challenge to companies to do the same, may not replace the employee’s right to fair labour practices. The employee still has remedies in terms of labour legislation.
In terms of section 64 (4) of the Labour Relations Act, the employee may refer the dispute to the CCMA or relevant bargaining council where a request may be submitted that the original terms of the employment contract should be restored. A request may also be submitted for a strike certificate to be issued if the employer and employees cannot reach consensus during the conciliation.
In Staff Association for the Motor and Related Industries (SAMRI) v Toyota of South Africa Motors (Pty) Ltd (1998) the court determined that the employee must prove that:
- changes have been made to the terms and conditions of the employment contract; and
- the employee has not given permission for the conditions of employment to be changed.
If an employee referred a dispute to the CCMA and the employer refuses to correct the change, the Labour Court may be approached to compel the employer to make the correction.
A company must first approach its employees, consult with them and obtain their consent before their salaries may be reduced to be used as a donation for the fight against Covid-19.
* All information was correct at the time of publication.