Legal Aid South Africa v Theunissen

Mr Daniel Cornelis Theunissen was employed by Legal Aid South Africa from 1 May 2008. His letter of employment was silent on retirement age. At the time, Legal Aid SA’s 2007 Human Resources Policy set the retirement age at 65 for all employees. In 2009, and again in 2012 and 2015, Legal Aid SA revised its terms and conditions, lowering the retirement age to 60, subject to a savings clause for employees expressly entitled to retire at 65 in their individual contracts or who were 55 years or older by 1 August 2009. Mr Theunissen did not fall within these exceptions. After extensive consultation processes, Legal Aid SA informed Mr Theunissen that he would retire at age 60. His employment was terminated on 30 June 2017 when he turned 60. He challenged this as a breach of contract, arguing his retirement age remained 65.

The appeal was upheld. The Labour Court’s judgment and reinstatement order were set aside. Mr Theunissen’s retirement at age 60 was held to be lawful and contractually valid.

The case clarifies the interpretation of savings clauses in amended employment policies and distinguishes between individual contracts and general employment policies. It affirms employers’ ability, following proper consultation, to amend general terms and conditions affecting retirement age without breaching individual contracts.