Solidarity obo Kern v Mudau and others
Case No. JR 987 / 05
Judgment Date: 19 January 2007
Jurisdiction: Labour Court, Johannesburg
Judge: Mokgoatlheng AJ
Subject: Appeal and Review
The appellant?s member went through a restructuring process and claimed that he had been demoted as a result of the restructure. The dispute was arbitrated but the member was unsuccessful, principally because he had suffered no loss of remuneration in the new position. He sought a review of that decision.
Summary of Facts:
The employment of the appellant?s member, JF Kern, was changed from Senior Personnel Officer to Committee Officer as a result of a restructure of the municipal employer. The procedures for the restructure had been agreed in a collective agreement between the parties. The dispute was arbitrated and the arbitrator found no demotion or unfair labour practice.
Kern sought a review of the arbitrators? decision on the basis that the changes to his employment were in breach of the collective agreement, a demotion and an unfair labour practice. Specifically, Kern sought a review on the basis that the arbitrator had misdirected himself in finding that Kern was not demoted because he did not suffer any financial loss or benefits.
Summary of Judgment:
The Court found for the applicant and agreed that the arbitrator had misdirected himself. It accepted the applicant?s argument that the juridical concept of demotion does not necessarily require that one should suffer financial loss or benefits for a demotion to eventuate, that demotion may also occur where status, job content, responsibility and promotion prospects are prejudiced.
Accordingly, the Court found that there had been a demotion that amounted to an unfair labour practice.
In assessing relief, the Court granted the maximum compensatory relief; Kern was awarded the difference between the annual remuneration for the post of Manager Human Resources (which the Court found he would have been appointed too had the respondent complied with the collective agreement) and the annual remuneration for the position he was given. He was also awarded costs.