ZELDA VENTER
zelda.venter@inl.co.za
The Constitutional Court cast a fresh eye on the issue of whether it is fair to fire employees working beyond their retirement age.
The Labour Court in Johannesburg and the Labour Appeal Court earlier ruled in favour of two employers who at first agreed to allow some workers to work beyond their 60-year retirement age, but within a year or so, terminated their contracts.
Aggrieved with the findings, the unions of the fired workers turned to the Apex Court to have a final say on the matter.
They, however, first asked the court to grant them leave to appeal the Labour Court and its appeal component’s decisions that the dismissals were fair.
The first application was brought by the Motor Industry Staff Association (Misa), on behalf of Willem Landman who worked for Great South Africa Autobody CC, trading as Great South Panelbeaters.
The second application was brought by Solidarity against the State Information Technology Agency (Sita). The union embers are former employees of Sita.
In this matter, their employment contract provided that their retirement ages would be regulated by their pension fund rules.
The rules provided that, subject to the employer’s consent, an employee who reached the normal retirement age of 60, may remain in service beyond the normal retirement age until they turned 67.
When they were dismissed a year or so after they had turned 60, they lodged grievances challenging the company’s decision to enforce the retirement age.
In the Landman case, he was also allowed to stay on after he turned 60, despite the fact that the Labour Relations Act provided that employees had to be retired when they reached the given retirement age, which was also 60 in his case.
He was allowed to work for about another year, before his services were terminated.
It was argued on behalf of the applicants that by virtue of their employers’ conduct to allow them to stay on, a new employment contract had come into play, one which did not contain an agreed retirement age.
In Landman’s matter, it was argued that by dismissing him after he was told he could stay on, the company had unfairly discriminated against him on the basis of his age.
His employer argued that his dismissal was fair under the Labour Relations Act as he had reached his agreed retirement age.
It added that an employer could retire an employee at any time after the employee reached the agreed retirement age.
In the Sita matter, the six axed employees, represented by Solidarity, fell under the Alexander Forbes Pension Fund while they were employed. They said that under the fund’s rules, they could remain employed until they reached 67.
Solidarity argued that Sita had unilaterally imposed a retirement date and subsequently terminated their contracts. The union said that constituted an automatic and unfair dismissal on the basis of age.
Sita, in turn, argued that the fund’s rules had never been implemented in that there had been no consent from it for any of its employees, including the applicants in the matter.
Pretoria News