Employers sometimes elect to demote employees when dismissal, as a disciplinary sanction, would have been justified and after a Disciplinary Hearing was conducted. The demotion above cannot occur before the employer follows a fair procedure, and the employer is not allowed to enforce a demotion upon an employee in a partisan manner. Before the demotion is enforced, the employer must consult with the particular employee and afford them the opportunity to make representations regarding the demotion. The employer has to follow a fair disciplinary procedure and provide the employee with the option of demotion as an alternative to dismissal. If an employer fails to follow the consultation route, it may amount be an unfair labour practice.
The courts have occasionally ordered the reinstatement of employees where a fair procedure was not followed before demoting an employee.
In Van Niekerk v Medicross Health Care Group (Pty) Ltd, an employee was demoted from a managerial position to a mere clerk. After considering the evidence, the CCMA ruled that the employer should have consulted and counselled the employee before the employee was demoted. In the circumstances, the CCMA found that the employer’s action amounted to a unilateral change in the terms and conditions of the employee’s employment. The employer was accordingly ordered to reinstate the employee to her former position as a manager.
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