If the poor work performance was sufficiently serious to warrant the dismissal then the alternative to dismissal such as demotion could be deemed to be fair, if the process was fairly done. In essence Section 186 of the Labour Relations Act says that “unfair conduct by the Employer relating to the demotion of an Employee” could mean an unfair labour practice. If there are circumstances of unfair labour practices, then the fair demotion could be deemed to fair in our law. The CCMA have held in many arbitrations that an alternative to dismissal such as a lesser sanction of demotion could be appropriate in certain circumstances. If dismissal was an appropriate sanction then this lesser “sentence” should be appropriate because we all understand the LRA discouraging dismissals. The LRA says that dismissal must be the last resort. Clearly this means that any lesser punishment would be applicable. Obviously, the authorities would test the circumstances of the demotion and would also test how the demotion was actually done. Certainly, if demotions were aimed at avoiding retrenchment or dismissal for incapacity then they could be deemed to be fair. In an interesting arbitration award, the CCMA stated as follows: “It does not make much sense to say that although an Employee’s misconduct or poor performance is serious enough to justify dismissal, the Employer is not allowed to unilaterally demote the Employee and must choose between dismissing the
Employee or giving him a final warning.” In that particular arbitration award the CCMA accepted demotion as being the fair and appropriate sanction in that particular case.
In the SA Breweries arbitration award the Commissioner stated as follows: “Clearly the Employer had to act quickly to get the Employee out of her position, so as to allow somebody else to perform the functions required by the position. I cannot see that the Employer had any other option but to dismiss or demote”.
Demotion is an option in our law and should be used in certain circumstances.