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.


In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?