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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
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?