Business needs change, you know, and job content can evolve too, sometimes gradually and imperceptibly, other times abruptly and even jarringly, based on the shifting business landscape, to the extent that an employee could potentially find him or herself in a different reporting line with a different set of deliverables during the tenure of one contract. Sometimes these changes come with commensurate adjustments to the pay, but that depends on the budget, especially if the changes have not impacted the grading of the job. Sometimes changes are made after extensive consultation with the employee, with sufficient training and orientation for both the affected employee and the teams he is leaving and joining. But there are instances where these changes are just announced and the employee can either take it or leave it. Is it legal for the employer to unilaterally make changes to employment terms and conditions, and what if the employee is not agreed, and actually refuses the changes? Whether the changes are a transfer to an unanticipated location, adjustment of job title and reporting line, variance of the job to incorporate new tasks/responsibilities for instance? Apart from the personal sense of unfairness and resentment, is it wrong, say for instance at law, to make changes?
The long and short of it, is that, it is not necessarily wrong to make changes because the business trades in an ambiguous and dynamic environment, and has to be poised to respond as efficiently as possible at any given time. But if this progression is not provided for, say in the employer’s Conditions of Service, what guides the process? Is it about legal compliance or more about relationship management? Expectation management? Protecting trust?
Colleagues in industry may want to refer to different sections of Employment Act (EA), but I will argue this simply as a redundancy, even if it is at the micro level of one of two or a handful employees whose jobs are changing not ending, and so couple Section 25 of the EA with what happened in January 2021 when an employer and a union confronted a similar issue. So, is it legal? Well, it is not illegal. Let the employer simply engage in consultation with the employee, showing that there is a legitimate business reason, and that there was a transparent, unambiguous process applied, in determining the changes to the working conditions as anticipated. The employer has to show why the changes are necessary, how the affected employee was selected, what implications there are, what other consequential adjustments are expected. With sufficient consultation, what was a unilateral decision imposed on the staff member can become a mutually agreed variance. And if the employee remains opposed, he or she would not be wrong to resign.
Shameela Winston is Managing Partner and Lead Consultant at Winston Bakari & Associates, providing services in HR consultancy, psychometric assessments and executive coaching.
