Article 13/2021

Labour Edge

An employee is expected to speak up if he/she objects to an employer’s action.  On what basis did the labour appeal court recently, in Legal Aid South Africa v Theunissen (2019) 30 SALLR 34 (LAC), hold that the failure to speak up against altering a retirement age will result in the employee having acquiesced to the revised retirement age?

  1. In McWilliams v First Consolidated Holdings 1982 (1) All SA 245 (A), the appellate division observed:

‘I accept that quiescence is not necessarily acquiescence and that a party’s failure to reply to a letter asserting the existence of an obligation owed by such party to the writer does not always justify an inference that the assertion was accepted as the truth. But in general, when according to ordinary commercial practice and human expectation firm repudiation of such assertion would be the norm if it was not accepted as correct, such party’s silence and inaction, unless satisfactorily explained, may be taken to constitute an admission by him of the truth of the assertion, or at least will be an important factor telling against him in the assessment of the probabilities and in the final determination of the dispute. And, an adverse inference will the more readily be drawn when the unchallenged assertion had been preceded by correspondence or negotiations between the parties relative to the subject matter of the assertion.’

  1. Notably, in Theunissen, Legal Aid SA had commenced the consultation process in relation to the 2009 terms and conditions by emailing a version to staff in which ‘revisions, changes or new inclusions are indicated in bold italic font, strike through and a line in the right hand margin’. It had thus been expected of the employee to speak up, had he had any objections to the altered retirement age. He had, however, elected not to object, thereby acquiescing to the revised retirement age. He had to be held to this election.

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.