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.


With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.