Can an employee be fairly dismissed based on their age, specifically relating to retirement?
Case: Motor Industries Staff Association and Another v Great South Autobody CC T/A Great South Panel Beaters (JA68/2021)
Background:
An employment contract was entered into on the 30th of January 2008 between the employer and employee. The employment contract expressly provided that the employers retirement age was 60 years old. Despite the employee having turned 60 years on the 15th of March 2018, he continued to render his services to the employer in terms of his employment contract. Approximately 9 months after the employee reaching the agreed retirement age of 60 years, the employer had provided the employee with written termination of the employees services, with effect from 12 February 2019 for reasons that the employee had reached the normal retirement age.
The employee was subsequently dismissed and referred the dispute to the Labour Court challenging that his dismissal was unfair in terms of section 187(1)(f) of the Labour Relations Act 66 of 1995, as amended (LRA).
The Labour Court
The Labour Court found that in light of the employee having already reached the normal retirement age at the time of his dismissal, the employees dismissal was fair in terms of section 187(2)(b) of the LRA.
The Labour Appeal Court
Dissatisfied with the findings of the Labour Court, the employee applied for leave to the Labour Appeal Court (LAC).
The LAC considered the provisions of section 187(2)(b) of the LRA and found that where regard is given to its ordinary meaning, as the dismissed employee had already reached the agreed or normal retirement age, it follows that the dismissal is deemed to be fair.
Additionally, the LAC found that section 187(2)(b) does not prescribe a timeframe within which the dismissal should take place and therefore, this section affords the right to an employer to dismiss an employee on the basis of age at any time after the employee has reached the retirement age.
The LAC accordingly dismissed the employee’s appeal.
It remains to be seen whether the employee will seek to appeal the LAC’s decision to the Constitutional Court.
