Article 12/2021

Labour Edge

The labour appeal court recently confirmed that so-called flexibility provisions entitle an employer to change the retirement age of employees.  How did the labour appeal court deal with such provisions contained in an employment manual and an employee’s individual letter of employment?

  1. The labour appeal court, in Legal Aid South Africa v Theunissen (2019) 30 SALLR 34 (LAC), found that the following flexibility provisions were contained in both the employer’s employment manual and the employee’s individual letter of appointment: ‘In order to achieve the professional service excellence to which the Legal Aid Board is committed it is consequently necessary that employees undertake to accept and adapt to changes in working conditions with the appropriate degree of flexibility indicated by an acknowledgment that the needs of the Legal Aid Board’s clients are paramount. By accepting this offer of employment you agree that you will be flexible in adapting to change in your working conditions.’
  2. On the basis of the above, it was found that the employer was contractually entitled to change the terms and conditions of employment (i.e. retirement age) and the employee was obliged to accept these changes.
  3. In conclusion, it was held that the process to change the retirement age was not unilateral but multilateral and consultative, with the employee having been afforded numerous opportunities to participate in the process and to safeguard his/her interests.

 

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The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?