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[2018] ZALAC 35
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BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of South Africa and Another (JA/132/17) [2018] ZALAC 35; [2019] 2 BLLR 107 (LAC); (2019) 40 ILJ 306 (LAC) (17 October 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA/132/17
In
the matter Between:
BMW
(SOUTH AFRICA) (PTY)
LTD
Appellant
and
NATIONAL
UNION OF METALWORKERS
OF
SOUTH AFRICA
First Respondent
VAN
DER BANK, MADELAIN
Second Respondent
Heard:
22 August 2018
Delivered:
17 October 2018
Summary: Automatically
unfair discrimination on account of age – issue for
determination is whether the employee consented
to the change of the
retirement age from 65 to 60 or whether by her conduct acquiesced to
such change – court held that employee’s
conduct leads to
a finding on probabilities that she had acquiesced to the change and
that the averment that she had submitted
the form indicating her
election to retain her retirement age of 65 not consonant with the
evidence – Appeal upheld and Labour
Court’s judgment set
aside.
Coram:
Musi, Sutherland JJA and Kathree-Setiloane AJA
JUDGMENT
SUTHERLAND
JA
Introduction
[1]
There
is both an appeal and a cross-appeal in this case. The second
respondent, Van der Bank, (the respondent) was employed by the
appellant who insisted she retire at age 60 years. Respondent claims
this constituted an automatically unfair dismissal on grounds
of age
as contemplated by section 187(1)(f) of the Labour Relations act 66
of 1995 (LRA).
[1]
The
Labour court upheld her claim and it is against that order that the
appeal is lodged. The respondent also claimed damages for
loss of
earnings she alleges she would have earned if she had worked until
age 65. That claim was dismissed and respondent has
filed a
cross-appeal against that order.
[2]
The controversies for decision are
these:
[3]
Was there an actual “dismissal”?
Appellant contends respondent retired at an agreed time and on that
premise, the duration
of employment terminated by effluxion of time;
alternatively, if the time was not agreed, in any event, she retired
at the “normal
retirement age” of the appellant, hence no
“dismissal” occurred.
[4]
The fact of a “dismissal”
turns on whether age 60 was an agreed retirement age or the normal
retirement age and in particular
whether such agreement or
“normality” was established, by conduct in the form of
waiver or acquiescence.
[5]
By contrast, respondent contends
that there was no consent given to her retiring at age 60, and
furthermore, upon invitation from
the appellant, she elected, in
writing, to preserve her vested right, an allegation disputed by the
appellant.
[6]
Whether a claim by the respondent
for damages for the loss of income because she was deprived of five
years of employment was proven.
The
Controversy
[7]
There are a few hard facts in
dispute.
[8]
The appellant became employed by the
appellant in 1986. It is common cause that her letter of appointment
was silent about a retirement
age. However, the letter incorporated a
staff handbook by reference which did stipulate the age as 65. The
appellant acknowledged
this vested the respondent with that right.
[9]
The
handbook stipulated that its contents could be varied by the
employer, ostensibly unilaterally. However, it is not the case
of the
appellant that it had a power to unilaterally vary the terms of the
employment contract, at least insofar as the age of
retirement is
concerned and indeed, the appellant did not act as if it had such a
right.
[2]
[10]
In 1994, change was in the air, not
least of all within the appellant’s organisation. For various
reasons, irrelevant to this
controversy, it was the wish of the
appellant to have a uniform retirement age of 60. It pursued such a
policy change, including
an engagement with its collective bargaining
partners. At that time, its employees did not all belong to a single
superannuation
fund. Some belonged to a pension fund and others
belonged to a provident fund. The respondent was a provident fund
member.
[11]
The details of the management and
administration of this change to the retirement age are obscure. The
appellant claims that in
1995, all employees were notified of the
change, but as is evident from events in 1997, the management was not
then confident that
this really occurred. What is known is that an
“inter office memorandum” addressed to pension fund
members was supposedly
put on a notice board on 28 March 1995. It
stated that:
‘
The
official company retirement age has now been changed to age 60. Those
of you who indicated that you would like to remain at
retirement age
65 will be able to do so…. We will make a list of all who
specially indicated they would like to keep their
retirement age at
65. If you are in doubt, please contact my secretary to confirm what
your choice was.’
[12]
The BMW Pension Fund board resolved
on 5 July 1995 to amend the Rules as follows:
‘
Normal
retirement date’ shall mean for each member the last day of the
month in which the member attains Age 60 years. Provided
that each
member who was a member on 31 January may elect the last day of the
month in which the member attains age 65 years to
be the members
‘normal retirement date’.
The evidence discloses no
similar resolution for the provident fund at this time.
[13]
An undated “Managerial
notice”, not addressed especially to the pension fund members
or the provident fund members and
seemingly addressed to everyone,
was put up on noticeboards which stated that:
‘
As
you are aware the official retirement date has been reduced from 65
to 60 years of age with effect from 1 January 1995. This
is
applicable to all employees engaged from the above date onwards. It
is however, the intention to extend this condition to all
employees
in line with current industry standards. Should this present a
problem to any one they are requested to indicate in writing
to the
personnel department their choice to remain on a retirement condition
of 65 years of age. This decision must reach the personnel
department
by not later than 31 May 1995.’
[14]
On the evidence, no other form of
communication addressed the content of this memorandum. It bears
careful examination. Significantly,
to belabour the point, these
documents and the appellant’s expressed stance, point towards
the appellant recognising that
it could not effect the change to the
retirement age unilaterally. It chose to invite employees to put in
writing the choice to
preserve their rights, failing which the change
would apply to them; ergo, absence a written objection, the term of
employment
would be changed. By implication, employees would be taken
to have agreed, by way of an acquiescence to the change.
[15]
The respondent says she was unaware
of the changes in 1995. Her say-so, on this point, is not seriously
challenged; indeed, it would
seem likely that the 1995 changes did
not affect her personally because the Fund to which she belonged was
not yet affected.
[16]
Two years passed. What exactly
happened during this period is not addressed in the evidence. On 21
January 1997, an inter-office
memorandum was addressed to all “BMW
provident/non-contributory fund members.” Its text is
significant. It stated:
Retirement
age:
‘
A
number of years ago a choice was given to members to elect to retire
at age 65 or 60. At the same time the general retirement
age was
amended to 60 and is since then been a condition of employment. It
appears that not all members were aware of this choice.
Therefore, a
further opportunity is provided to exercise your option if you were a
member prior to June 1995.
Please complete the form
below and return it to the personnel department before 24 March
1997’.
[
Below
this text is set out a form calling for name, age, company number,
and the legend with reference to two blocks next to “60”
and “65”:
“
I
hereby elect a retirement age of [60] [65] ”
[17]
This notice alerts employees that
the normal age of retirement is age 60. It cautions employees to
react if they wish to be different.
The implication is plain that
absent a positive intervention by the employee the age of retirement
shall be age 60.
[18]
The evidence shows that, 10 months
later, on 7 October 1997, a resolution to amend the rules of the BMW
provident fund was taken
to stipulate age 60 as the retirement date
effective from 1 January 1997. Why the formalisation was performed
retrospectively is
unexplained.
[19]
The respondent acknowledged that she
was aware of this communication of 21 January 1997, a critical
admission. She alleged, in her
statement of case, that she responded
positively to this communication. She filled in the form to elect to
retain a retirement
age of 65 years. She sent it to the personnel
department
via
the internal mail. She kept no copy. She says after she sent it she
called a person in the personnel department, whose identity
she
cannot now recall, to say that it was on its way. She did not follow
up to confirm receipt. No direct evidence exists that
the election
form reached its intended destination. Self-evidently, this is a
serious weakness in the respondent’s assertion
that it was
indeed received but is by no means dispositive of that question.
[20]
To these averments, the appellant
alleged that it has no record of the receipt of such a form from the
respondent. The veracity
of this assertion is uncontested from 2010
onwards. As to the period 1997 - 2010, the possession of such a
document is disputed.
The appellant’s case is that there was no
such form submitted by respondent.
[21]
The evidence adduced by the
appellant included an exposition of the creation of appellant’s
database kept on SAP, a software
program, onto which all company
records were supposedly loaded from 1 March 1997, having formerly
been kept both physically and
on another software program, Huris. The
1997 data transfer was said by Swarts, the Information Technology
techno-boff, who oversaw
the process, to have experienced “glitches”.
The appellant, of necessity, relied on its SAP database, which might
or
might not have accurately been uploaded with all the staff
documentation. Swarts said that staff details were uploaded in
stages;
the initial information being what was essential to run the
payroll and items such as retirement dates later on. In my view, this
method points towards significant vulnerability of faulty uploading.
Nonetheless, this vulnerability is by no means proof that
indeed a
particular form was received.
[22]
According to the respondent, she was
blissfully unaware of any ambiguity about her retirement date until,
as a result of others
grumbling in the office she applied her mind to
her benefit statement from the Fund Administrator in January 2010; ie
fully 13
years after the time she claims to have made the election.
She read on her annual benefit statement for 2010, that her
retirement
date was recorded as her 60th birthday which she claimed
was wrong as it ought to have been her 65
th
birthday. She rummaged about her records and found that the benefit
statements for 1998 and 1999 stated her retirement age was
65. Only
thereafter from 2000 onwards, was it stated differently. As a result,
she approached Kelbrick, the head of personnel.
[23]
However, prior to her approaching
Kelbrick, other events had occurred, beyond her ken.
[24]
These
events concern discrepancies between the records of the appellant and
those of the retirement fund managers which came to
light in 2001.
This is explained in a letter written on 15 May 2001 by Yvette
Badsha, the Divisional Manager of NBC, the Fund Administrator
to the
appellant to address an erroneous reflection on the benefit statement
of retirement ages as 65 and not 60. He apologised
and said it was
now corrected. This letter goes hand in hand with an undated letter
by one, Fegbeul, the chairman of the Board
of trustees of the Fund,
sent to members. The evidence was that the letter was attached to
benefit statements for 2001. It was
headed: “Your normal
Retirement age”. It stated that: “According to our
records [ie that of the Fund, not the
employer] your normal
retirement date is recorded as age 60. A number of members have
queried this and the purpose of this note
is to give you
background.
[3]
”
The
letter goes on to recount the history of the changes. It then stated;
“What should you do if your records reflect that
you elected to
retain a Normal retirement age of 65?”…Should your
records reflect that you elected to retain your
normal retirement age
of 65 you are asked to contact your personnel department.”
Also, members having queries were directed
to contact the principal
officer of the Fund, Greyling, directly.
[25]
Another episode occurred which is
relevant to the controversy. Albert Vorster, an employee became
aggrieved when he noticed that
his retirement date had been changed
to age 60. He protested. He alleged he had submitted a form electing
age 65. He could not
produce a copy. The Board of the appellant met
and resolved to accept his say-so. This decision was ostensibly eased
by the fund
administrator claiming that it had erred, though in what
respect was never disclosed. Years later, after retiring, when
clearing
up after his wife had died, Vorster came upon the copy of
his election form he had kept and could not produce at the time it
was
initially asked for. This evidence was adduced to “prove”
that his form was lost by the appellant and did not get captured
on
the database. Might the same be the case with the respondent? In my
view, this evidence does not prove that Vorster sent a form,
though
the “copy” is strong evidence that he probably did so;
whether Vorster’s form was actually
received
is an open question. The respondent is a position weaker than that of
Vorster because there is no objective corroboration, in the
shape of
a copy of the form, that can be presented.
[26]
The respondent, in evidence, said
she did not know if she got a copy of the 15 May 2001 letter to
members. No direct proof of the
letter being sent to anyone exists.
On the probabilities, if indeed it was attached to an annual benefit
statement, she probably
would have got it. Other evidence by the
respondent does not suggest that she failed to get all of her annual
benefit statements.
It must accordingly to taken as established that
she did not react to the invitation, if it was, indeed, received by
her. It was,
however, argued that had she read it she would have had
good cause to think it did not apply to her. That is incorrect; the
2000
benefit statement, and all that followed thereafter, stated her
retirement age as 60, and all she needed to do was refer to the
latest Fund statement to check her own position.
[27]
To return to the events of 2010, in
January, Kelbrick and respondent met and discussed the issue of her
benefit statement “error”
about her retirement date.
Kelbrick’s recollection of what was said is that the focus was
on the erroneous recordal of the
retirement date. It was in that
context that he referred her to the Fund Administrators. What the
evidence reliably reveals about
this episode is what was captured in
respondent’s letter of 25 January 2010 to Kelbrick after their
meeting. The text of
what is recorded is important:
‘
As
per your suggestion I contacted Roy Rouke at our retirement fund and
he suggested that I take up the matter with you as the date
was
changed during 2000 by BMW and not by Alexander Forbes. I have
documentation up to 1999 stating that my normal retirement date
is
…age 65 – see attachments.
I
do not recall agreeing to any change and therefore request that my
retirement age be corrected as 4 05 2019.
Kindly inform me when the
above changes have been made.’ (Italics supplied)
[28]
The information given to the
respondent resonates with the letter of Badsha of 15 May 2001.
Notably, no allusion was made by the
respondent that she submitted an
election form in 1997. Kelbrick denied flatly that the submission of
a form was mentioned in their
discussions in 2010, and this e-mail
corporates that allegation. Moreover, the emphasised sentence, as
cited, is inconsistent with
an assertion that a positive election had
been made and the choice was age 65. The distinction is significant.
[29]
Kelbrick replied to the respondent
on 9 March 2010:
‘
Whilst
it is acknowledged that a retirement date of 65 appeared on certain
benefit statements from the retirement fund …..this
was not
the information held by the company.
The company changed the
retirement age from 65 to 60 during 1995 and gave associates who were
employed at the time the opportunity
to inform it in writing that
they wished to remain on retirement age 65.
We have checked our
records and can confirm that we do not have such a notification from
yourself.
It must therefore be
concluded that, unless you can prove that such a letter was in fact
submitted by yourself at the time, your
retirement age is 60 years.’
(italics supplied)
[30]
This letter ended the exchanges
between Kelbrick and the respondent. It must be inferred from these
exchanges that the only allusion
to a form being submitted was in
Kelbrick’s explanation of his own enquiries into the records,
not a claim by the respondent
to having submitted a form. No
allegation is made in any follow-up by the respondent that she had
done so. An additional aspect
to note is the allusion to “1995”
rather than to “1997”. The tenor of Kelbrick’s
remarks is consistent
with the tenor of the communications of that
time, cited above; ie absent an objection, the employee is subject to
the change to
age 60. If the respondent had said then, as she pleaded
in the Labour Court that she had submitted a form in 1997, this reply
to
her could not have been articulated in this way.
[31]
There the matter lay, for about a
further three years, until 2014, when respondent’s 60
th
birthday loomed. By then, she had joined NUMSA, sometime in 2013, who
it must be presumed, gave her assistance in furthering the
matter.
[32]
On 7 January 2014, she reopened the
controversy when she wrote to the appellant:
‘
As
discussed….
I did not accept the
change of retirement date when it was changed after my employment
date
BMW needs to prove that I
did accept the change (which I did not). The onus is not on me to
prove this…… ‘(Italics
supplied)
[33]
The respondent then launched a
formal grievance on 31 March 2014. She articulated it thus:
‘
I
am pressurised to retire at the age of 60 as opposed to the age of
65, I require proof from the company showing we where I accepted
this
change.”
[34]
The tenor of this grievance is a
demand that her employer adduces proof to her of her acceptance. Why
say this if, in her mind at
that time, she knew she had made an
election to remain at 65?
[35]
The grievance was rejected, on the
basis that no documentation could be found or produced by the
respondent to show her retirement
age was 65.
[36]
A further grievance at a higher
level was lodged on 8 April 2014. She articulated it thus:
‘
I
am pressurised to retire at 60. I require proof from the
company….showing me
where I
signed that I accept this change
.
Employment contract was 65….Change was unlawful.’
(Italics supplied)
[37]
The articulation of the grievance is
inconsistent with a claim that she had made an election. It is
glaringly obvious that absence
of any reference to a claim that she
had indeed submitted the form.
[38]
Again, her grievance was rejected.
Again, a lengthy exposition by the appellant was given as to why the
grievance was rejected.
The essential rationale articulated was
identical to the outcome of the first grievance enquiry. The portion
that is pertinent
to the controversy before the court reads thus:
‘
To
date two critical pieces of evidence have not been submitted by the
employee proving how she took responsibility to keep on file
her own
proof of retirement age being 65 and not 60:
(i)
The 1995 option form completed by the
employee to indicate choice of retirement age being that of 65.
(ii)
The employee’s written response to
the corrections made by the principal officer following her email
enquiry of 26 January
2010.’
[35]
It was argued that this text
supported the proposition that she had made a claim to have submitted
a form. The argument must fail.
Over and above the need to assess
evidence holistically, this text blandly records the demand of the
employer for evidence of making
an election, not a recordal of her
claiming she made one.
[36]
The
respondent, under duress, retired and then litigated her dispute. In
her statement of claim for the first time is the averment
made that
she had made an election and sent in a form.
[4]
[37]
A traverse of the correspondence
shows inconsistency with the notion that her case had always been
that she had submitted an election
form in 1997. Rather there is a
consistent thrust that she never surrendered her vested right and she
demanded, rhetorically, that
her employer prove that she had
surrendered it.
[38]
It is not possible to ignore the
gear change in her case from 2014. A belated claim articulating a
submission of an election form
is a weakness in her case because it
would have been expected that such a pivotal act on her part would be
the central bone of
contention. It was argued that the tone and
content of the correspondence must be read to mean that she, at
least, implied that
she had submitted a form. Regrettably, for the
respondent, the exchanges cannot be fairly read to reach that
outcome. Indeed, the
tenor of the recorded exchanges including the
grievances is that she was repeatedly asked for a copy of the
election form but did
not counter this by saying that she had
submitted the form. Were it otherwise, the grievance reports would
necessarily have alluded
to her claim of a submission of such a form
and that no record was in existence to corroborate the claim.
The
repeated articulation of a demand to show her where she accepted age
60 is inconsistent with her pleaded claim that she made
a positive
election to retain age 65.
[39]
In my view, the respondent’s
assertions are properly to be questioned and their shortcomings and
anomalies self-evident.
[40]
On a totality of the facts, the
probabilities are against the respondent’s version. In my view,
the Court
a quo
never engaged with these issues and in that regard misdirected
itself. Its premise was that because the appellant had lost the
forms, at least of Vorster, and could not reliably deny receipt of
forms, the case of the respondent that she had submitted the
form was
proven. That premise unduly exaggerates the significance of the
appellant’s inability to put up a positive rebuttal
of receipt
of a form; indeed, there is no evidence it was received.
[41]
Ultimately, the case to be decided
is the case put up by the respondent: did she or did she not submit
an election form retaining
age 65, or did she acquiesce in the
changes. This should not be thought to be reversing the
onus
;
the respondent’s burden was limited to a burden to adduce
evidence of her averment that she submitted a form which her employer
received. Absence a positive finding that the probabilities show that
she did elect as alleged, the appellant’s case that
she
acquiesced is made out, by reason of the length of time that elapsed
since the change was made, initially until 2010, and then
a further
period of acquiescence until 2014.
[42]
Her claim to have made an election
cannot be found to be true.
Conclusions
[43]
The finding must, therefore, be that
the appellant did not transgress section 187(1) (f) of the LRA. The
respondent’s employment
was terminated at the age
constructively agreed upon and, thus, the normal age.
[44]
Accordingly, the appeal must
succeed.
[45]
The counter claim by the respondent
in respect of her loss of income earning opportunity to the age of 65
is axiomatically dependent
on the dismissal of the appeal. Because
the appeal has succeeded the cross-appeal must therefore fail.
[46]
As to costs, in the circumstances,
no order shall be made in respect of the appeal and cross-appeal, nor
of the proceedings
a quo
.
The
Order
(1)
The appeal is upheld.
(2)
The cross-appeal is dismissed.
(3)
The whole of the order of the Labour Court
a quo
is
set aside and substituted with:
“
The
Application is dismissed”.
___________________
Sutherland JA
Sutherland
JA (with whom Musi JA and Kathree–Setiloane AJA concur)
APPEARANCES:
FOR
THE APPELLANT: Adv F Boda SC, with him, Adv G Van Der Westhuizen,
Instructed
by Norton Rose Fulbright Inc.
FOR
THE RESPONDENTS: Adv A-M De Vos SC, with her, Adv I de Vos,
Instructed
by Ruth Edmonds.
[1]
The
relevant portions of section 187 are:
(1)
A
dismissal
is
automatically unfair if the employer, in dismissing the
employee
…the reason for the
dismissal
is-
(a)
....(e)
(f) that the employer
unfairly discriminated against an
employee
, directly or
indirectly, on any arbitrary ground, including, but not limited to
race, gender, sex, ethnic or social origin, colour,
sexual
orientation, age, disability, religion, conscience, belief,
political opinion, culture, language, marital status or family
responsibility;
(g)
…
.(h)
(2)
Despite subsection (1)
(f)
-
(a)
……
(b)
a
dismissal
based
on age is fair if the
employee
has
reached the normal or agreed retirement age for persons employed in
that capacity.” It must follow that an onus
lies upon an
employer to establish the exception in section 187(2)(b).
[2]
See,
cf:
Erasmus
and Others v Senwes Ltd and
Others
(2006) 27 ILJ 259 (T). in this decision it was held that even where
a unilateral power exists, it must be exercised reasonably.
[3]
Apparently,
a group of aggrieved employees, led by one Jones, had raised the
issue, thereby provoking a re-examination.
[4]
The
respondent had to depose to a condonation affidavit relating to late
filing of a statement of case. The condonation issue
is immaterial
to this judgment. The content of the affidavit is, however, alleged
to be material to the credibility of the respondent.
With reference to her January 2010 meeting with Kelbrick she says
that Kelbrick said to her that she had to provide the form
that “….
I had completed in 1995/1997’. She informed him that she did
not have a copy of the option form.
It was suggested that the
hedging remarks about the date, ie 1995/1997’ lent weight to
the inference of mendacity. I am
unimpressed by this particular
contention because it seems to me that the drafter of the affidavit,
who, certainly was not the
respondent herself, sought to hedge, and
is so often the case with lay litigants, she was deferential to
formulations presented
to her by her then advisers. However, as
regards the probabilities that need to be assessed, the allusion to
the respondent’s
request to be provided a form is not echoed
in the contemporaneous exchanges, as already traversed earlier in
this judgment.