If an employer decides to transfer an employee’s place of work to another geographical location, their justification will be – nine times out of ten – that as the employee signed an employment contract with them, the employer is entitled to transfer employee. The case below illustrates that it is not that simple.

In Naidoo / MTN (Pty) Ltd – (2018) 27 CCMA 27 CCMA 6.16.1 also reported at [2018] 7 BALR 739 (CCMA):

A store supervisor was transferred from the branch at which he worked to another branch in the same city. As a result, the commission which he earned decreased. The employee claimed that this was an unfair demotion.

The employer argued that action did not fall within the definition of “unfair labour practice” because the employee’s case related to remuneration.

The Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) concluded that the employee had not been consulted about the decision to transfer him. Although the employee’s contract expressly provided for the possibility that the employer was allowed to transfer him within given areas, he was not given the opportunity to meet targets which affected his commission. The employee had, accordingly, proved that he had been subjected to an unfair labour practice.

The employee was awarded compensation equal to the amount he had earned, with commission, at the store from which he was transferred.

In the case where the employee’s remuneration (commission) was affected by the transfer not to allow him the opportunity to engage in the transfer and to have a chance to solve the problem was regarded as unfair.

Contact Global Business Solutions before you transfer any employees

If you need to transfer an employee, make sure that you do it correctly. Contact Jonathan Goldberg and the legal team to assist you. Follow this link to leave your details.