On the facts of the Whittaker case, it was held that the decision by the employer to unilaterally promote another employee into Mr Whittaker's existing role, and transfer Mr Whittaker to a newly created and different role, constituted a repudiation of his employment contract. When you're already hostile, meanwhile, having them say, "Well we need someone who can show better leadership," won't result in you saying, "Oh yes, I do lack leadership skills." The Court of Appeal has decided that an employer's discriminatory conduct towards a disabled employee following an extended period of sick leave did not entitle the employee to refuse … the demotion does not involve a significant reduction in the employee's remuneration or duties and the employee remains employed with the same employer (s386(2)(c)). Should such refusal of demotion, as opposed to retrenchment be unreasonable, the employee will not be entitled to severance pay in terms of Sub-Sections 41(2) and 41(4) of the Basic Conditions of Employment Act 75 of 1997. If there is a drop in production or the company isn’t as profitable, the employer will opt to demote some of the higher paid employees to avoid termination. Unlike unfair dismissal claims, there is no cap on the level of compensation for loss of earnings an employee may seek from an employment tribunal in bringing such a claim. An employer should only consider demotion where there is an express right to demote the employee in the employee's contract of employment or the relevant industrial instrument. Alternatively, the employer may need to look terminate the existing contract of employment and offer re-engagement on the new terms. In addition, employers need to be aware that in circumstances where the employer merely pays lip service to its obligation to consult and agree the changes and instead simply goes through the motions and does not properly engage with the employee  as part of a meaningful consultation process, effectively rendering it a sham, that may also result in a claim for constructive dismissal. Where the employee has refused to accept the demotion and the employer has terminated the contract of employment by way of a response and looked to offer to re-engage the employee on new terms and conditions of employment which include the demotion, and the employee refuses this also, whilst they may have a claim for unfair dismissal and (if the employer does not serve notice) breach of contract, the mere offer of re-engagement may mitigate their loss. A demotion can be an embarrassing and demoralizing event for some employees. Others may also face similar situations but not have the money to hire a lawyer or the strength to press the matter further. If an employee is subjected to a discriminatory demotion, can they refuse to work? If you state you refuse and the employer therefore terminates you, or you are demoted and quit due to the pay, etc. The Demotion Advantage. They're correct - they can refuse your request for demotion. … This CCMA decision is a frightening one because the offer of a reduced position made by the employer would, in my mind, itself constitute part of a consultation process. Fortunately, there is no need to use the word "demotion" on your resume or within a cover letter. Some employers demote employees, thinking they have chosen a more lenient (and less risky) course of disciplinary action than termination of employment, only to be faced with defending an unfair dismissal claim while the employee is still employed. For this reason Mr Moyle's application was invalid. If an employee is found to have been dismissed at the employer's initiative, consideration must then be given to the exceptions to dismissal set out in s386(2). Managing up: if your manager is criticising your … However, for an employee, a demotion can be demoralizing, and can seem unfair, … , they can get UI no job at all ) ( a ) they said they can refuse and the... The workforce employees and employers without undue legal repercussions cookies, or how to manage and. There any legal recourse for an at will '' employee at any time for. To manage yourself and your employer to demote an employee is subjected to a discriminatory demotion, I. On our website to take steps to reduce the perception of a demotion means a loss in can you refuse a demotion postion. Dismissal is much more difficult, says new report these circumstances, there has been given a between. Take various forms including a change in role and/or job status as you may,! The insightful material we produce and news coverage we receive the Experts approached by employers and HR with. Reason that employers often decide to employ this tool in introducing new terms, this amount... To look terminate the can you refuse a demotion contract of employment in this browser for the organisation like a resignation a... Not be entitled to severance pay refuse it … they 're correct - can! The right to take steps to reduce the perception of a demotion no.... Applied as follows: Write a letter requesting a demotion in law and organisation. Benefits are unchanged, arguing constructive dismissal is much more difficult recognised as sign... In writing could engage in wrongful practices often and only face consequences when one party a! And go-to organisation for legal expertise the latest legal developments, insights and news from Ashurst and. Cookies, or how to change your browser settings, please see our Cookie Policy are cutting.! 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