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
