Understanding Probation In Employment

Variation Of Employment Contracts

Once the parties have agreed on the essential terms of the contract, its terms are fixed in the sense that neither party may unilaterally vary them unless the original contract provides for variation. Statutorily, the Labour Act Chapter 28:01 states that one of its objectives is to promote the participation by employees in decisions affecting their interests in the work place which entails the need for employees to be consulted before any decision which affects their interest is made by the employer. (Section 2A(1)(e) of the Act).

At common law, an employer cannot without agreement be compelled to vary a contract of employment in a manner more favourable to the employee. Conversely, an employer cannot unilaterally alter the terms or conditions of a current employment contract even if the change is to the employee’s advantage. However, that does not mean that the relationship between the parties is frozen in a contractual straightjacket; an employer may change working practices, provided that such changes do not alter the employee’s contractual rights. This principle was underscored by the Supreme Court in Chirasasa&Ors v Nhamo NO 2003 (2) ZLR 206 at 220 (SC) as per Malaba JA (as he then was) as follows;

“The appellants perhaps failed to appreciate that a contract of employment cannot remain static throughout the whole of its existence regardless of the changes in the fortunes of the business. Refusal to accept a change in the terms and conditions of employment necessitated by the commercial interests of a business may be a good enough reason for terminating a contract of employment on notice.”

Whether a change constitutes a mere change of work practice (which is permissible) or a contractual change (which is impermissible) depends on the facts of each case. There is a thin line between unilateral variations of contractual provisions and changes to working practices. The fine line is a fertile ground for contractual disputes which often times spill into the courts of law.

The terms of a contract of employment may be lawfully varied at any stage by mutual consent of the employer and the employee. The agreement to vary maybe obtained by engaging the employee individually or through collective agreements with the employee’s lawful representatives like workers committee or trade union. The parties’ consent need not be express or in writing. Silence coupled with acquiescence in the change may stop the parties from later denying the legality of the variation. This principle was applied with full force by the Supreme Court in the case of Moses Mawire v Rio Zim Limited (Private) Limited SC 13/21 where the court held as follows;

“As already mentioned earlier, the respondent issued out an internal memorandum
on 21 March 2009 following the adoption of the United States dollar currency. This
memorandum had the effect of altering the appellant’s contract of employment. Following the
memorandum, the appellant, who was the Human Resources officer, accepted his new salary
in terms of the memorandum. He was receiving a salary in terms of the memorandum and for
the five years, he never raised any complaint nor did he challenge the new salary scale.
It is trite that consent can either be express or implied.

In the case of Smith v Hughes L.R 6 Q.B 597 at p 607, it was stated that:

“If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.”

For five years the respondent accepted a salary, in terms of a memorandum which had no provision for any allowances. By such conduct, he accepted the variation of the terms of his contract of employment. If he genuinely felt that the memorandum breached his contractual rights, he ought not to have accepted the salaries and ought to have mounted his challenge at the pertinent time or within the permitted period. In the absence of any challenge
to the variation of the contract, it is clear that after variation of the contract of employment, there was acquiescence by the appellant. If there was acceptance of the variation, as there was, there was no claim to be prescribed. It follows that by his conduct, the appellant impliedly consented to the variation of his contract. In such circumstances, he could not claim any benefits flowing out of the contract that had been varied. The court a quo thus correctly found that the contract of employment was varied with the consent of the appellant and therefore the allowances claimed by the appellant were no longer claimable under the contract ushered in by the memorandum.”

It is prudent that when proposing to vary the employee’s contract, the employer should fully consult with the employee or their representatives and must explain and discuss reasons behind the proposed change. Employees are likely to accept change if they understand the reasons behind them. When there is no agreement, employers often resort to imposing changes unilaterally which amounts to breach of the employment contractand this normally attracts resistance from employees resulting in disputes whichspill into the courts of law. See Agricultural Bank of Zimbabwe Limited t/a Agribank v Machingaifa & Anor SC 61/07; Air Zimbabwe v Zendera& Others 2002(1) ZLR 132 (S).

It must be noted that a contract may contain an express term which allows the employer to make changes to the employee’s terms and conditions. This unilateral variation clause permits the employer to vary the employment contract without the consent of the employee.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

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