SA Labour Guide Case Law Updates

labour-guideLabour Guide Case Law: 2014-07

By Nicolene Erasmus

Wood / University of Cape Town [2014] 3 BALR 310 (CCMA)

Towards the end of 2011 a situation of incompatibility arose between the applicant and two of his colleagues in the respondent’s Graduate School of Business. The respondent proposed that the applicant be transferred (with no loss of benefits) to the School of Management Studies in the Commerce Faculty, which the applicant was not willing to accept as according to him, the transfer amounted to an unfair demotion.

Referring to Grogan (Dismissal, Discrimination and Unfair Labour Practices (1ed page 54) the commissioner held:

“A demotion occurs if the change to the employee’s terms and conditions of employment are such that they result in a material reduction of the employee’s remuneration, responsibilities or status.  A demotion does not occur merely because the employee is placed in a post involving slightly different work, especially when that work falls within the scope of the employee’s duties.  The mere fact that an employee’s title and remuneration remains the same is not necessarily proof that a demotion has not occurred.”

The commissioner was not convinced that the transfer constituted a demotion – however, even if it did, the commissioner was satisfied that it was not an unfair demotion. The fairness of the transfer must be judged with reference to the interests of both parties.  The competing interests of the parties must be balanced. The respondent would suffer more harm if the applicant were to return to the GSB, than the applicant would suffer by remaining at the SMS.

The transfer which was neither unfair conduct in relation to demotion, nor unfair disciplinary action short of dismissal, was a sensible and fair response by the respondent to an operational problem. The referral of an unfair labour practice was therefore dismissed.

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