NUMSA obo King and Others v BMW South Africa (Pty) Ltd (JS 740/18; JS 410/17; JS 177/17) [2020] ZALCJHB 115 (11 March 2020)

NUMSA obo King and Others v BMW South Africa (Pty) Ltd (JS 740/18; JS 410/17; JS 177/17) [2020] ZALCJHB 115 (11 March 2020)

The court found that the agreed retirement age for the applicants was 65 years, and the respondent's unilateral change to 60 years was not consented to by the employees. The doctrine of acquiescence does not apply in labour law to permit such a change absent clear, unequivocal conduct amounting to tacit consent. The dismissals were effected on the basis of age before the employees reached the agreed retirement age, constituting automatically unfair dismissals under section 187(1)(f) of the Labour Relations Act. The breach of contract claims have not prescribed, as prescription only began when the employees elected to accept repudiation upon termination. The claims for unfair...

Citation
[2020] ZALCJHB 115
Parties
Applicant: NUMSA obo King and Two Others; Respondent: BMW South Africa (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
11 March 2020
Case Number
JS 740/18; JS 410/17; JS 177/17
Procedural Posture
Trial Civil / Liability Determination; Quantum and Relief Reserved
Outcome
The dismissals of De Beer, Bester, and King are declared automatically unfair. The breach of contract claims are upheld and have not prescribed. The claims for unfair discrimination are dismissed for want of jurisdiction. Declaratory relief is refused. Costs are awarded against the respondent in respect of the...
Judges
GN Moshoana
Legal Topics
Automatically Unfair Dismissal, Retirement Age, Unilateral Change of Terms, Prescription, Breach of Contract, Employment Equity Act
Labour Law Civil Procedure Automatically Unfair Dismissal Retirement Age Unilateral Change of Terms Prescription Breach of Contract Employment Equity Act

Case Brief

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Parties

NUMSA obo King and Two Others

Applicant

BMW South Africa (Pty) Ltd

Respondent

Procedural Posture

Trial Civil / Liability Determination; Quantum and Relief Reserved

Legal Issues

  1. 1 Whether the dismissal of employees before reaching the agreed retirement age of 65 constitutes an automatically unfair dismissal.
  2. 2 Whether the doctrine of acquiescence applies to the change in retirement age from 65 to 60.
  3. 3 Whether the breach of contract claims have become prescribed and unenforceable in law.

Ratio Decidendi

The court found that the agreed retirement age for the applicants was 65 years, and the respondent's unilateral change to 60 years was not consented to by the employees. The doctrine of acquiescence does not apply in labour law to permit such a change absent clear, unequivocal conduct amounting to tacit consent. The dismissals were effected on the basis of age before the employees reached the agreed retirement age, constituting automatically unfair dismissals under section 187(1)(f) of the Labour Relations Act. The breach of contract claims have not prescribed, as prescription only began when the employees elected to accept repudiation upon termination. The claims for unfair...

Court Disposition

The dismissals of De Beer, Bester, and King are declared automatically unfair. The breach of contract claims are upheld and have not prescribed. The claims for unfair discrimination are dismissed for want of jurisdiction. Declaratory relief is refused. Costs are awarded against the respondent in respect of the...

Orders

  • The absolution from the instance application is confirmed to be withdrawn with costs, including wasted costs of 2 and 3 December 2019, and costs for two counsel, payable by the respondent.
  • The breach of contract claims have not become prescribed and are upheld; the special plea of prescription is dismissed.