The changing of an employee’s job content is frequently a highly sensitive and troublesome process which often has the potential to spawn individual labour disputes, and at times, collective conflict. It is not uncommon for employers to hear the refrain, “ .. but that’s not in my job description !” or “I’m the TEA lady, make your own COFFEE!”.
Quite clearly, employers are not entitled to fundamentally unilaterally change or vary an employee’s work obligations in a manner which imposes obligations on an employee for which they are not trained or qualified, or perhaps may move them into a higher job evaluation grade without a commensurate increase in remuneration.
However, the dynamic nature of the present-day workplace is such that very few jobs remain static in content.
Job content invariably evolves as organisations grow and vary strategies to maintain a competitive advantage in the market place. The conundrum faced by employers and employees relates to the point at which a change to job content, particularly when it takes the form of additional tasks and duties to be performed, amounts to a unilateral (and therefore ‘unfair’) change in an employee’s terms and conditions of employment. In the event that an employer were to be deemed to have unilaterally changed terms and conditions of employment, the remedy sought would ordinarily include additional compensation or a restoration of the status quo prior to the change.
So, to what extent can employers vary job content without running the risk of being subjected to section 64(4) of the Labour Relations Act?
In SA Chemical Workers Union obo Mhlongo v. Silicon Technology (Pty) Ltd [Case No.KN6500-02] the commissioner drew an important distinction in the arbitration award between ‘terms and conditions of employment’ and ‘work practices’. “Terms and conditions of employment” were defined as “the core rights and duties of employees under their employment contracts”, whilst ‘work practices’ were defined as to the manner “the contracted work is to be done”.
Of particular significance in the award was the point made by the commissioner that “The practical significance of the distinction between ‘terms and conditions of employment’ and ‘work practices’ is that it is now widely recognised that changes to work practices can be introduced unilaterally without prior negotiation – they fall within the management prerogative”.
However, the commissioner conceded that it may be difficult to distinguish between the two categories at times, and that it would be prudent in such circumstances to treat such changes “as subjects for negotiation with the aim of reaching consensus, if possible.”
In conclusion, the commissioner referred to the matter of A Mauchle (Pty) Ltd t/a Precision Tools v NUMSA & others (1995) 16 ILJ 349 (LAC) in which the court observed that “employees do not have a vested right to preserve their working obligations completely unchanged as from the moment when they first begin work”.
Prolonged employee absenteeism due to ill health presents employers with a conundrum as lengthy or habitual absenteeism impacts on productivity. One thing is certain, employers may not simply dismiss employees who are absent for a lengthy period, or have a pattern of habitual absenteeism. Our courts have developed an empathetic approach to employees suffering from ill health. On the other hand, it is understood that employer’s interests are similarly legitimate and employers cannot be required to preserve the employment of long-absent employees indefinitely ad infinitum.
Schedule 8 of the LRA makes it quite clear that prior to taking any steps against an employee absent on grounds of ill-health the employer must conduct an investigation into nature and extent of the employee’s illness, and whether the resultant absenteeism expected to be prolonged or not. In addition, the employer must seek to establish whether the employee’s job can be adapted to accommodate the employee’s condition.
That’s not to say of course that employees themselves don’t have a duty to communicate with their employers in such circumstances as they clearly do; but our law, rightfully, contemplates circumstances where the employee’s illness may render him or her incapable of communicating at all or lucidly (such as cases of extreme trauma or mental illness).
Investigations of this nature ordinarily include contact with the employee if possible, medical staff and family.
This would address the so-called substantive fairness aspect of any subsequent dismissal, and would include the employee being warned that their ongoing employment relationship with the employer is in jeopardy.
From a procedural fairness perspective, the employee must also be afforded an opportunity to make representations to the employer prior to any dismissal decision being finalised, ensuring that any decision to dismiss is not made hastily.
Employers would differ in their ability to condone ill health absenteeism as well as their ability to seek alternative positions for the employee or adapt their duties. For example, a municipality employing many thousands of employees would be expected to be more capable of doing so than a small or medium sized enterprise.
In NEHAWU & another v SA Institute for Medical Research  2 BLLR 146 (IC) the employee had taken 475 days sick leave during her six years of employment prior to being dismissed on grounds of absenteeism due to her ill health. It was held that the dismissal of the employee was fair as the employer had consulted with her on three occasions, warning her each time that continued absences would jeopardise her employment.
In the final analysis, a methodical investigation by the employer into the nature and extent employee’s illness, followed by a hearing to assess whether the employee is capable of returning to work timeously is required. Add to this an exploration of alternative positions or altered duties, if possible, and a hearing to assess each of these aspects of the case. Dismissal may then be justified albeit reluctantly given the employee’s predicament.