THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR02/2020
In the matter between:
AMCU OBO FANIE KHOZA Applicant
and
NATIONAL BARGAINING COUNCIL FOR THE WOOD First Respondent
AND PAPER SECTOR
COMMISSIONER TSHAYANA NO Second Respondent
TIMRITE (PTY) LTD Third Respondent
Heard: 23 October 2025
Delivered: Judgment was handed down on 19 January 2026, by email to the
parties’ legal representatives.
Summary: Application to review and set aside ruling of the third respondent.
Application dismissed, no costs.
JUDGMENT
2
DANIELS J
Introduction
[1] The applicant referred an alleged unfair labour practice, premised on a
demotion, to the first respondent (Bargaining Council). The dispute was
allocated to the second respondent (the commissioner) who was
required to decide whether the applicant was unfairly demoted and, if so,
the appropriate relief. The commissioner ruled that the applicant was not
demoted. The applicant seeks to review and set aside the ruling.
Material facts
[2] The third respondent (“the employer”) is a member of the Bargaining
Council where wages and terms and conditions of employment for the
industry are negotiated. At the time, AMCU, the trade union representing
its member, Mr Fanie Khoza, was not a party to the Bargaining Council.
[3] The employer, in its implementation of the wage rates agreed upon at the
Bargaining Council, decided that the salaries of those employees earning
more than the Bargaining Council rates would be reduced and instead be
paid as a ‘service allowance’. The employer contends that these changes
occurred after roadshows where the changes were discussed with
employees. The employer contends that this change was necessary to
ensure “equal pay for equal work” as required by the Employment Equity
Act
1.
[4] The applicant contends that changes to the salary structure of its
member
2 was unfair because there was no agreement to such changes.
The applicant argues that the change impacts on severance pay, UIF, as
1 No. 55 of 1998
2 Mr Khoza was employed as a forklift truck driver earning R27,75 per hour. During November
2018, his hourly rate was reduced by Timrite to R22,11 but from this time he received a service
allowance of R5,54 per hour.
3
well as Sunday and overtime pay. In addition, the applicant contends,
such changes were in breach of section 34(1) of the Basic Conditions of
Employment Act.
3
Legal principles and analysis
[5] In relation to arbitration awards issued by commissioners of the CCMA
and Bargaining Councils, the test in review s is settled. The court is
required to ask whether the “arbitration award [is] one which no
reasonable commissioner could reach on the material before him or her ?”
The test is known as the ‘reasonableness test’ or the ‘Sidumo test’ named
after the case citation. 4 However, where the ruling is jurisdictional, the
question is whether the commissioner correctly determined the issue. The
applicant’s case is premised on an alleged unfair labour practice arising
from a demotion. Absent any demotion, the Bargaining Council had no
jurisdiction.
[6] Accordingly, the first issue is whether the applicant discharged the onus to
prove that the conduct of the employer constituted a demotion. In Ndlela v
SA Stevedores Ltd 5 (“Ndlela”) the presiding officer of the Industrial Court
stated:
“Demotion is not a word which has some special meaning in labour law.
It bears its ordinary meaning, namely 'to reduce to a lower rank or
category'. The opposite of demotion is 'promotion'. The applicant would,
after the reorganization, have retained his employment. He would have
retained his grading according to the Paterson scale. There would have
been no reduction in salary. He would be required to do the work of a
foreman. Whilst doing that work his responsibilities would to some
extent be less than they would have been as senior foreman but then at
3 No. 75 of 1997
4 Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ 2405 (CC)
5 (1992) 13 ILJ 663 (IC)
4
times which may have been for as long as five months in the year, he
would have been required to act as a superintendent. Whilst so acting,
his responsibilities would have been far more onerous and responsible
than they would have been as a senior foreman. He could not have
thought that what the employer was doing was to make it clear to him
and to all and sundry that they thought that he was not capable of
fulfilling his former functions. It was clear to him and to all others that the
respondent regarded him as so capable that he would be the most
senior in the hierarchy of foremen and the one who would do the most
difficult work when such work was required. That being so, the mere
change in title and the fact that at times he may be required to perform
work of lesser importance than he previously performed is not, in my
opinion, demotion. It was argued that there would eventually be a
reduction in salary because his increments in future would be slightly
less so that he is brought on a par with the other foremen. That may
have happened. It is also possible that it would not have happened. That
his real income would have dropped is most unlikely because when
acting as a superintendent he would receive the salary and the other
benefits attached to that position including provision of transport or
making available means of transport. Financially he would have been no
worse off. As far as status is concerned he was in my opinion clearly no
worse off. He was the most senior of the foremen and demonstrated to
be capable of being a superintendent. But even if I am I wrong and even
if that position would amount to a demotion, he was offered a transfer to
the clean cargo division as a foreman.” (own emphasis)
[7] As is apparent from what is set out above, Ndlela did not find that changes
to remuneration, or remuneration structure, by itself will constitute a
demotion. The presiding officer considered all the factors including the
demotion. The presiding officer considered all the factors including the
employee’s status, responsibilities, as well as remuneration.
[8] In SA Police Service v Salukazana & others 6 (“SA Police Services”) this
court stated: “Demotion can manifest itself in many ways. It can arise
6 (2010) 31 ILJ 2465 (LC) at para 19
5
through the reduction of salary, change in terms and conditions of
employment and indeed transfer .” In SA Police Services , the respondent
had been transferred to a new position and contended that his transfer
was a demotion (although he remained on the same grade and his salary
and benefits were unchanged) because his status had diminished given
that he no longer reported to the area commissioner but a subordinate. SA
Police Services is also not authority for the proposition that any changes to
remuneration, or remuneration structure, absent changes to status or
responsibilities, constitutes a demotion.
[9] In Nxele v Chief Deputy Commissioner, Corporate Services, Department
of Correctional Services & others7 (“Nxele”) the Labour Appeal Court held:
“… the mere fact that the appellant's rank and remuneration were not
going to change does not mean that the transfer to Pollsmoor could not
or did not constitute a demotion. I agree, too, that the status, prestige
and responsibilities of the position are relevant to the determination of
whether or not a transfer in a particular case constitutes a demotion.”
(own emphasis)
[10] Nxele is not authority for the submission that changes to remuneration,
or remuneration structure, by itself , will constitute a demotion. The
abovementioned quotation must be understood in context - diminution of
position, rank, status or responsibilities normally result in the reduction of
remuneration.
[11] It is trite that the “unfair labour practice” in section 186(2) of the Labour
Relations Act 8 is a closed list and does not include every conceivable
unfair act by employer s. For instance, the definition (of unfair labour
practices) includes unfair conduct by an employer in relation to “benefits”
but does not do so in relation to remuneration. Although, depending on
7 (2008) 29 ILJ 2708 (LAC) at para 88
8 No. 66 of 1995
6
the circumstances, benefits may be part of an employee’s remuneration,
‘remuneration’ remains a separate, and broader, concept. I cannot ignore
the fact that the drafters of the LRA made a deliberate decision to include
unfair conduct by an employer in relation to benefits but not in relation to
remuneration.
[12] What is set out above does not suggest that an employer is free to
conduct itself unlawfully in relation to an employee’s remuneration or
remuneration structure. Remuneration, and remuneration structure, are
issues that are ordinarily embedded in the employment contract, and any
breach of such contract may be challenged in either the Labour Court or
civil courts.
[13] In this matter, the applicant did not contend that there was any diminution
to its member’s position, rank, grade, status, dignity, or responsibilities.
Insofar the changes to the employee’s remuneration structure have the
effect that his remuneration is unilaterally reduced, this may constitute a
breach of his employment contract. Insofar as such conduct is also
unfair, this does not fall within the scope of the unfair labour practice.
Conclusion
[14] For the reasons set out above, the application is dismissed. Costs were
not actively pursued by the parties and there are no extraordinary
circumstances justifying costs. There is therefore no order as to costs.
[15] In the circumstances, the application is dismissed with no order as to
costs.
RN Daniels
Judge of the Labour Court of South Africa
7
Appearances
For the Applicant:
Adv S Saunders
Instructed by LDA Inc
For the Third Respondent:
Adv Tshivhase
Padi Inc