The Labour Relations Act, under section 186 (2)(a), describes a demotion as an unfair labour practice. The section reads as follows:
(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
As a rule, a fair procedure must be followed before an employer demotes an employee. In the absence of such fair procedure being followed, the employee’s demotion may amount to an unfair labour practice. Therefore, an employer may not unilaterally affect a demotion without consulting an employee.
Many employers are under the mistaken belief that as long as an employee’s salary and benefits remain the same, they cannot claim that they have been unfairly demoted. Employers need to note that the unfair demotion of an employee is not necessarily cured by the fact that their salary and benefits remain the same.
The above was confirmed in the case of Van Wyk v Albany Bakeries Ltd & others (2003) 12 BLLR 1274 (LC), where the Labour Court held that the demotion of an employee from the position of regional manager to that of a branch manager amounted to a demotion, even though the salary and benefits remained the same.
From the above, it is evident that unchanged salary and benefits do not cure an unfair demotion and employers need to be mindful and ensure the necessary procedures are adhered to prior to demoting an employee.
Article By: Jason van der Merwe
Dispute Resolution Official – East London