Dismissals that occur after normal retirement age present employers with a specific set of circumstances that differ markedly from all other forms of dismissal.
Section 187(2)(b) of the Labour Relations Act states that a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.
Predictably, the Commission for Conciliation, Mediation and Arbitration has been required to conciliate and adjudicate disputes relating to post retirement-age dismissals.
The dismissal of an employee who is employed beyond normal retirement date does in fact constitute a dismissal per se, but is deemed to be a termination of the contract of employment due to the effluxion of time, which is fair.
A retirement date may be agreed. However, there may be no agreement on the normal retirement date. In such circumstances, sixty five is normally deemed to amount to a generic normal retirement date.
In the CCMA arbitration case of SASBO versus Khayalethu (Case Number FS822) the 70 year-old employee argued that she was dismissed and pensioned by the company because of age, and that this constituted age discrimination as provided for in section 187(1)(C) of the LRA.
She added that the allegedly unfair age discrimination had also amounted to an automatically unfair dismissal.
The Commissioner disagreed with the employee stating in the arbitration award that section 187 of the LRA provided for post retirement-age dismissal.
This issue was further addressed in the CCMA arbitration matter of Freda Theunette Maritz versus Pepps Mokopane Primary School (Case Number NP6559).
The employee was challenging the fact that she was compelled to retire on the date on which she reached normal retirement date.
The employee had in fact wanted to work beyond this date, as is often the case.
The commissioner found that the dismissal was fair stating that a contract of employment may be terminated where the employee has reached his/her normal retirement age (see Harris versus Bakker & Steyger 1993 14 ILJ 1553).
“Although I accept that in terms of section 186(a) of the LRA of 1995, the employer dismissed the employee, I am however of the view that this was a normal termination of the employee’s employment by effluxion of time,” the commissioner said, and went on to quote section 187(2)(b) of the LRA.
The dismissal of elderly employees is always likely to raise emotions, particularly when such employees are compelled to work to sustain themselves.
Up until recently, it was not uncommon for the employment of post-retirement age employees to come under threat during retrenchment exercises.
A mandatory retirement age cannot be introduced, or enforced, by an employer without the employee’s consent. Predictably, employees must be fully consulted when a decision is to be made in the absence of a confirmed normal retirement date or age.
Follow Tony on Twitter at @tony_healy