KEY POINTS:
I am presently employed three full days per week. My employers tell me they want me to work five half days a week. I have told them that the extra cost and time associated with travelling are too much, together with the fact that I need the days off as I have a medical condition (osteoporosis) that needs me to exercise to keep mobile. My employer is trying to change my contract of employment. Can you let me know where I stand?
As a general rule, the provisions of an employment agreement can only be changed with the agreement of all parties. Under the Employment Relations Act 2000, collective employment agreements must contain a clause providing how the agreement will be varied (section 54). The act is silent on how individual employment agreements can be varied, except for its provisions relating to "unfair bargaining".
You should check your employment agreement to see if there is a clause which provides for a variation of the agreement by the parties. There is an obvious inference that the parties to an employment relationship are unlikely to agree on a "variations clause" that does not provide for them to agree on any changes.
General employment law provides that:
* An employer who wishes to alter the terms of the employment contract must obtain the agreement of the employees concerned and pay them some consideration if the change is solely to the advantage of the employer (the employer doesn't have to pay consideration if the employee agrees to the variation).
* An employer is entitled to reorganise its business but, in doing so, cannot ignore the provisions of existing employment agreements. Whether the changes are fair, reasonable or unilateral and amounting to repudiation of the contract is a matter for the courts to decide.
* Unilateral variations - where a party tries to "impose" upon the other party a change of the employment agreement - can be justified by the employer if they are technical and inconsequential in their effect.
* Attempts by an employer to alter the terms of the contract unilaterally will not be binding on an employee who refuses to accept the changes.
* An employee who does not protest at an employer's unilateral changes will be deemed to have accepted them.
* Even unwilling acceptance of changes will vary a contract.
Your normal days and hours of work are terms of your employment.
But if your employment agreement provides that your employer can change your hours of work or days of work - there is a clause in your employment agreement which says you are to work the days and hours as required by your employer - then you will have to accept the changes.
If there is no such provision in your employment agreement, and you find that your employer forces you to accept the changes to your days and hours of work and you feel pressured to leave your employment, then you may be said to have been constructively dismissed.
Constructive dismissal occurs when:
* An employer gives an employee a choice between resigning or being dismissed.
* An employer has followed a course of conduct with the deliberate and dominant purpose of coercing an employee to resign.
* A breach of duty by an employer leads the employee to resign.
Dismissals have been held to be constructive where an employer has made major changes to an employee's job duties, leading the employee to resign.
If you find yourself in this situation, you should speak to an employment law specialist from the Department of Labour or contact an employment lawyer.
All is not lost because you do have rights. I would recommend that you review your employment agreement and check for the clauses mentioned above. If you are still uncertain as to your rights, then speak with an employment law specialist or employment lawyer.
