Question posted in the General Law category relating to Gauteng
Hallo
I feel that I have been treated unfairly by my employer. I have always (September will be 10 years) gone the extra mile for my company sometimes even working in my leave and extending my stays in other countries surpassing my normal rotation period by three extra weeks. I have never been part of a year-end functions as I always travel and work during the time these activities happened. I have always excepted it as I understand the importance of generating and maintaining business for the company to be successful. in 2017 Sishen mine in Kathu had an environmental incident when they generated fly rock from one of their blasts and rock fragments ended up in the small town of Dingelton. my company was then requested to provide technical services, mentor, couch and over inspect the work of the mine and our opposition in the explosive world AEL. we started by working on a rotation basis on a month-to-month contract. But because for a shortage of technical employees we had to work extra and longer work periods. I do not work with the contracts or hold a position with any commercial responsibilities. My manager then informed me that the mine want to sign a contract and if I would relocate with my family to Kathu to execute the duties mentioned above. I agreed and then the waiting started to get the relocation done as there was a shortage of technical employees and the mine requiring a warm body on site everyday my manager requested me to move my family to Kathu and stay in the Orica shared accommodations with my family until the relocation was sorted. I then locked my rented house full of my belongings in JHB and drove to Kathu placed the kids in a new school and stayed in the shared housing up until the relocation was finalized in September 2019. At last, we could officially move to Kathu and find my own place to stay. December 2020, we learned that the mine would end the contract for the technical assistance. Thus will no longer require a warm body every day. The contract was successful and Sishen is mining the environmentally risky area safely and the life of mine is obviously extended. We also successfully gained a trail showcasing Orica’s newest technology and the expected outcome of the trail is very favourable. the new technology that Orica will supply to the mine does not require a human to be on site as the system and hardware are maintained remotely. the contract ended in December. Myself and my college had to set up a call with management to understand what our next steps would be. the decision was made by management to relocate us to Gauteng. I then finally moved to Pretoria in the beginning of march. I took two weeks leave to unpack and source new schools again for my kids. Now this is what made me write this letter. When payslip arrived for my march salary all my allowances have been removed and I earned about 28000 less. this change was done with absolutely no communication whatsoever. I have gone under dept counselling and they worked out everything but now I have earned a lot less and won’t even be able to pay my dept counselling nor do I know how to survive this month and the months to come. I have signed a contract for 3 years with my new landlord. furthermore, did my company does not support me during the time I worked at Sishen never even sent me a Sigle mask in the covid 19 disaster. and we were requested to work during the disaster. I feel like someone in my company is trying to harm me. the day I received my payslip I emailed the HR, and Conveniently I received an out of office reply. everyone got paid before the long weekend me included but 28000 less with nothing not even a message nothing. this year I will be working for the company for 10 years.
Please help me with what options I have. Hope you can assist me
Kind Regards
Walter
Information Requested by Lawyer
Hi there and thank you for your question,
I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.
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Do you mind if I take a moment to review your question? I will come back to you shortly!
Att. Patrick
Answer to the Question
Okay, so what the company can't do is to unilaterally change your employment contract. You have a contract with the company, which means that you and the company agree on the terms of your employment. i.e. where you will work, what hours, how much you will be paid, what is expected of you, etc.
"Under the common law, an employer is not permitted unilaterally to change the terms of an employment contract with an employee, and if it does so without agreement the employee would have the right to either abandon the contract or to sue for damages in terms of the contract."
What the company has done in removing your allowances and paying you less (without getting your agreement) constitutes an unfair labour practice, and is something that you can definitely challenge.
I think that you need to take this in 2 steps -
The first step is to get hold of management and/or HR and ask them to clarify what is happening in relation to your salary and allowances. Explain that they can't just change your salary without your agreement, and that you want your salary re-instated back to what it was, and you want the difference to be paid immediately.
If you don't come right with management and/or HR, then you need to think about taking the dispute to court or referring the dispute to the CCMA!
What remedies are available to the employee? Section 64 (4) of the LRA suggests that the employee can refer the dispute to the CCMA or a bargaining council, and the referring party may require the employer not to unilaterally implement the change to the terms and conditions of employment, or, if the employer has already implemented the change unilaterally, the referring party may require the employer to restore the terms and conditions of employment that applied before the change. Therefore, apart from being a "matter of mutual interest", where the remedy available to the employees is to engage in protected strike action, the unilateral variation or change also constitutes a breach of contract.
That being the case, the breach of contract constitutes a civil action, and the employees have the right to sue for damages, or sue the employer for due performance - in other words force the employer to comply with the original contract.
If the terms and conditions of the original employment contract are to be changed because of changed operational requirements of the employer, it is possible that, upon refusal of the employees to accept the changes, the employer may, under certain circumstances, be entitled to embark on retrenchment procedures. However, that does not mean that it is a simple matter of a refusal of acceptance by the employees, immediately followed by retrenchment of those employees. As in all cases, specific procedures are to be followed.
Employers who force unilateral changes in an effort to cause an employee to resign, or who force unilateral changes to try and get an employee to toe the line, are playing with fire. There are specific procedures for addressing such matters.
As can be seen, changes to terms and conditions of employment is not a matter to be approached without careful forethought and planning, if the employer wishes to avoid the employees concerned exercising their right in terms of referring a dispute to the CCMA.
https://www.labourguide.co.za/unilateral-changes
It is obviously difficult working for the company and at the same time having a dispute with the company, and therefore option 1 (management discussions/HR) is the best, but if they refuse to come right, then you need to stand up for your rights and sue them or refer the dispute to the CCMA.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow-up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted to be answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Information provided by client
Thank you so much for the information.
I have had discussions with with HR and Management. They are saying that they assumed I was aware that when they relocate me I will be sacrificing all my allowances. The impression I am getting is that they are just forcing me to accept the change and that they have done nothing wrong. They keep on scheduling calls day after day and the conversation always goes the way where they say I am wrong and must except the change. I have sent a mail to the CCMA. But I am lost as I have never been in this situation.
Information Requested by Lawyer
What exactly were the allowances for? Travelling?
Information provided by client
Answer to the Question
The housing allowance and location allowance are typically paid to an employee when they live in City A but are expected to rent a house in City B for the time of the contract. The allowance goes towards this rental/housing costs.
If you are no longer actually incurring those rental/housing costs, then on what basis do you feel that the company should continue to pay you these allowances?
Information provided by client
Answer to the Question
Okay, so if you can't resolve it with the company, you either need to file a dispute with the CCMA or you need to take the company to court and argue your case before a Magistrate/Judge. That's really your options!
Answer Accepted
Information provided by client
Answer to the Question
It really does sound like the company is not interested in resolving the complaint with you, and perhaps you should put your feelers out there to find another job - one where they will treat you with respect.