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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.

 

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?