Asked by Kurt on 23-03-2021 06:34:21
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

Posted by Att. Patrick on 23-03-2021 09:07:06

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.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

Do you mind if I take a moment to review your question? I will come back to you shortly!

Att. Patrick

Posted by Att. Patrick on 23-03-2021 09:20:26

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.

Hi

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.

Posted by Att. Patrick on 24-03-2021 16:33:11

What exactly were the allowances for? Travelling? 

hi i was receiving a housing allowance and a location allowance. the contract ended with the customer December 2020 i was then still payed my allowances for Jan and Feb and with no communication from my management end march the allowances are taken away. they have confirmed that they will not pay me my owed remuneration. they say they assumed that i was aware and there for decided not to inform me of the change

Posted by Att. Patrick on 25-03-2021 11:39:30

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?

Hi thanks for your answer. I did not own a house in any city the company relocated me when I joined from my home thabazimbi to rustenburg I was the moved to Krugerdorp. I was then asked to relocated to kathu and even almost a year before we had any agreement. I did this as we where short of warm body's on site and I was the only one willing to stay in a shared house with my family while we waited for the company to finalize the relocation. The relocation was sorted July 2019 and the contact with the customer till end December 2020. Our relocation letter was then issued in July 2019 with a lot of help full aspects but because I had already moved and done all the ground work regarding settling the family up I could not enjoy the mentioned perks. After the contract ended in December 2020 with no communication from my company on what to do and how to do it I tried numerous times to contact the manager with no success. I then contacted my college that was based with me op site and he explained to me that his discussion are done and his moved arranged. I panicked because I have not had communication regarding the relocation to kathu. I took matter is to my own hand and reached out to my HR where they hen replayed that they will send the moving truck details in order for me to move to Gauteng, again with no communication. The company even after the contract finished with no communication to me still paid my remuneration as I am use to. Then end March when I received my payslip I learned that my remuneration has been changed and is now more than 20% less with no message, call, email or any communication. I then immediately emailed my manager and the HR I got a out office reply from HR and that she would only be available after the long weekend. The manager then set up call for the Tuesday 23 Mar 2021 the HR and my manager then keeps on telling me they assumed that I was aware and that the changes are done and because they assumed I was aware that's just the way it is now. Please help me with the next step. I have asked them to rectify it and it was not done. They keep on sending me screenshots of the document I signed in July 2019. I highlighted the sections applicable in the basic condition of imployment and attached it for then in one of my emails. So my issue now is how do I tell then that I do not expect the changes it the changes are already made and now 5 days after we were paid, nothing has been fixed. The other concern is my HR does not and have never shown me the basic conditions of employment. What steps should I take for the best results. I have tried my best to explain ask and begged for them to consider the law. They just steer away from the fact that they breached my employment contract.

Posted by Att. Patrick on 25-03-2021 15:45:55

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! 

Okay thank you so much. Just please tell me what is the best route to take or will both options have the same outcome. Reason being I am scared as all the feedback from the company has been of a attacking nature and constant blame that I did not understand. And they are in the right. So for this reason I must go for the maximum as I feel the relationship has been damaged to the extent that I will not feel comfortable working for the company again. All my communication to management and HR was to help them see what has transpired and to rectify the misconduct. I went as far as highlighting the applicable sections in the basic conditions of employment and attached it to email to assist them. They are just blaming me. Has also gone as far as saying I have a disrespectful tone over the emails where I have just listed the facts.

Posted by Att. Patrick on 26-03-2021 09:34:36

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.