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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
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?