In a matter where retirement age is disputed, the burden of proof rests with the applicant. The case of BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of South Africa and another – (2019) 28 LAC 1.11.12 also reported at [2019] 2 BLLR 107 (LAC) illustrates this.

The employee’s contract had been concluded in 1986. It was silent on a retirement age but her letter of appointment referred to a staff handbook, which stipulated that the retirement age was 65 years of age.

In 1994 the employer decided to alter the retirement age of its employees to 60 and the pension fund rules were amended accordingly. However, the rules of the provident fund – of which the employee was a member – remained unchanged. Employees were informed by an undated general notice that the retirement age for all employees was to be lowered from 65 to 60. This was done twice in this period.

Employees were given a choice of retiring at 60 or 65. The provident rules were amended in that year. The employee claimed that she had indicated then that she wished to retire at 65, but the employer denied receiving the relevant form. When she turned 60, the employee informed the employer that she did not accept the change of her retirement age. The employee was forced to retire. She claimed that she had been dismissed and that the dismissal was automatically unfair based on age. The Labour Court upheld that claim.

The Labour Appeal Court held that the employee had failed to prove that she had elected to retire at 65. That claim had been made only in 2014. The burden rested on the employee to prove that she had submitted a form. Her failure to discharge that burden could not be rescued by reversing the onus and requiring the employer to prove that she had not. On the evidence, the employee’s claim that she had submitted the form – electing to retire at 65 – could not be found to be true.

The appeal was upheld.

Employees have to be aware of notices with changes to conditions of employment contained in them and respond to such proposed changes.

Contact Global Business Solutions

Our employment equity team – headed by Thembi Chagonda – is extremely experienced and skilled in all aspects of employment equity and transformation. If you have any questions for them, please contact them for more information.