TGWU & others v Coin Security Group (Pty) Ltd (2001) 22 ILJ 968 (LC)

Principle:

Where an employer wishes to change the conditions of employment and makes a demand of the workers to accept this change, the refusal to accept the demand cannot result in a dismissal, because this will be an automatically unfair dismissal in terms of s 187(1)(c) of the LRA. A unilateral change can in itself constitute a demand.

Facts:

The employer unilaterally withdrew transport customarily provided to take guards to their posts and required employees to find alternative transport or face possible dismissal. It was held that the employer's action constituted a 'demand' for the purposes of s 187(1)(c).

Extract from the judgment:

In my view, it was clear that Jordaan, for alleged operational reasons, demanded that the workers make their own way to their posts timeously and that this constituted a "demand" for the purposes of section 187(l)(c) of the LRA (quoted above at paragraph 26). This is especially so because it was clear that, at the time, the taking away of company transport was a matter for negotiation between the company and the workers. The provision of company transport was also a term and condition of employment of the workers (this matter will be discussed more fully below at paragraphs 34 to 37).

The managing director further threatened dismissal should the workers not do so "within 12 hours". The question therefore immediately arises: were the individual applicants who did not comply with this demand, in effect, dismissed on 12 and 13 March 1998 for this very reason? ...

In my view, the fact that most of the guards were continually provided with company transport and that only a very small minority used their own means to get to their posts points to the fact that, even for the small minority whose contracts did not expressly stipulate that company transport would be provided, this benefit constituted a tacit term of their contracts of employment. After all, it was clear that guards would not necessarily be permanently posted to a specific client but could be moved around. In the event, it was clear that the company provided transport to guards whenever it was needed and that this was a term and condition of their employment contracts.

It follows that the withdrawal of company transport in terms of the notice of 9 March 1998 (discussed above at paragraphs 23 to 27) also constituted a unilateral change to the terms and conditions of employment of the individual applicants. 161(c) of the LRA) must have been a member of that union already at the time of dismissal.