Article 34/2024

LabourEdge

What are the principles regulating demotion as an alternative sanction to dismissal and how is the jurisdiction of the CCMA affected by the agreement of the employee to such sanction?

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The labour court (Solidarity obo Taliep v Perishable Products Export Control Board and Others (2022) 33 SALLR 81 (LC); [2022] 12 BLLR 1141 (LC)), per Kahanovitz AJ, stated the following in respect of such demotion:

  • the agreement by the employee, that demotion is the alternative to dismissal, does not oust the jurisdiction of the CCMA, seeing that the CCMA is not asked to set aside the agreement but to decide on the existence of an unfair labour practice (Builders Warehouse (Pty) Ltd v CCMA (PA1/14) [2015] ZALAC 13 (5 May 2015))
  • the agreement by the employee also does not entail that the dismissal is fair
  • the mere consent is not sufficient to satisfy the requirement of fairness
  • in terms of TOWU obo Malan v Commuter Handling Services (Pty) Ltd 2006 (3) BALR 327 (CCMA); (2006) 17 (7) SALLR (CCMA), the requirements for procedural and substantive fairness, with regard to demotion, are equally applicable to demotion as the primary sanction, or, alternatively, the secondary sanction (i e an alternative to dismissal)
  • and, finally, with reference to Egerton v Mangosuthu Technikon (2002) 23 ILJ 2111 (CCMA), it was held that the agreement to be demoted, as an alternative to dismissal, does not imply the waiver of a right to challenge the fairness of the demotion as a sanction
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In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

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A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

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The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?