Air Products (Pty) Ltd v CWIU & another [1998] 1 BLLR 1 (LAC)

A transfer does not amount to a unilateral amendment to the contract where it is not a term that the employee will work only at one plant. Where the job is the same in both sites, there is no duty to consult, only an obligation to attempt to persuade the employee to accept the transfer.

Facts:

The employee was dismissed for gross insubordination after he refused to accept a transfer from one of the employer''s plants to another. The decision to transfer him had been taken after management decided that the workload at the plant where he had been working called for a reduction of one post, and that at the other plant required an additional employee. After the reasons for the proposal had been explained to him he refused to comply with the instruction that he transfer because he would be required to work night shifts, and requested to be retrenched. The employee was then instructed to attend a disciplinary inquiry, which he refused to do, and was dismissed in absentia. The Court held that the proposed transfer did not amount to a unilateral amendment to the contract as it was neither an express, implied nor tacit term that he would work only at one plant. The job he would have done at the other plant was the same as he had been doing except that he would be required to work night shifts. As there was no intention to retrench, there was no duty to consult, only an obligation to attempt to persuade the employee to co-operate. He had been given time to consult his union and had done so. His attitude accordingly amounted to gross insubordination.

Extract from the judgment:

[At p 6]   The fact is that the company did not contemplate retrenching Mmadi: his services were no longer needed in one division of the company (the cylinder test plant) whereas they were needed at another division (the hp plant). Absent the foreseeability of retrenchment, the company was under no obligation to consult the union prior to taking the decision to transfer Mmadi.

The transfer of Mmadi from the cylinder test plant to the hp plant did amount to a change in working conditions to his potential prejudice in the sense that he would be required to work night shift every second week at the hp plant whereas at the cylinder test plant he did not have to work night shift at all.

What was required of the company in those circumstances, as a matter of fairness and sound industrial relations practice, was to attempt to persuade Mmadi to co-operate and to accept the change in working conditions.