In terms of section 187(2)(b) of the Labour Relations Act, Act 66 of 1995 (“the LRA”) “[a] dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity”.

In Schweitzer v Waco Distributors (a division of Voltex (Pty) Ltd) [1998] ZALC 48; [1999] 2 BLLR 188 (LC), the Zondo J (as he was then) at paragraph 27suggested the following test to determine whether section 187(2)(b) of the LRA find application: –

“(a) the dismissal must be based on age;

(b) the employer must have a normal or agreed retirement age for persons employed in the capacity of the employee concerned;

(c) the employee must have reached the age referred to in (b) above.”

It was held in Rubin Sportswear v SACTWU & others (2004) 25 ILJ 1671 (LAC); [2004] 10 BLLR 986 at 1678J that “[t]he word ‘normal’ as used in s 187(2)(b) really means what it says. It means that which accords with the norm” and further at 1679H that “[a] retirement age that is not an agreed retirement age becomes a normal retirement age when employees have been retiring at that age over a certain long period… If the period is not sufficiently long but the number is large, it might still be that a norm has not been established”.

What is clear from this statement is that the failure to consistently retire employee at a certain age would vitiate against the existence of a normal retirement age. This was also the view expressed by Basson J in Gqibitole v Pace Community College [1999] ZALC 5; (1999) 20 ILJ 1270 (LC) at § [25] to § [27].

Zondo J (as he was then) further in Schweitzer v Waco Distributors (a division of Voltex (Pty) Ltd) supra at paragraph 18 interprets continued employment subsequent to retirement in the same vein as the Industrial Court previously did (see inter alia Harris v Bakker & Steyger (Pty) Ltd (1993) 14ILJ 1553 (IC) and Badenhorst v G C Baars (Pty) Ltd (1995) 10 BLLR 19 (IC)) but on the following interpretation of section 187(2)(b) of the LRA:-

“Bearing in mind, therefore, that sec 187(2)(b) refers to a dismissal, the position would be that the dismissal referred to in sec 187(2)(b) which is said to be fair is a dismissal as defined in sec 186. Dismissal in sec 187(2)(b) cannot carry a meaning which is different from the meaning of dismissal in sec 186. The fact that the coming to an end of the contract of employment by effluxion of time is not contemplated in the definition of dismissal in sec 186 meant that the dismissal in sec 187(2)(b) must include a dismissal after the employee has gone past the agreed or normal retirement age. That is the situation in this matter”.

The judgment seem to find express support inter alia in Rubenstrein v Price’s Daelite (Pty) Ltd 2002] ZALC 28; (2002) 23 ILJ 528 (LC); [2002] 5 BLLR 472 (LC) at paragraph 24.

The principles as set out by Zondo J is also applied in Botha v Du Toit Very & Partners CC [2005] ZALC 28; [2006] 1 BLLR 1 (LC) where there was no agreed retirement age and no formal contract of employment and the employee was dismissed more than a year after the normal retirement age. Revelas J found that the true reason for the termination of the applicant’s services was the operational requirement of the respondent and poor work performance by the employee. She further at paragraph 17 found the dismissal substantively fair but procedurally unfair, this despite finding that “[t]he Act also does not prescribe any procedure to be followed before a retirement age is announced, but for the reasons set out above, I believe there should be one”.

The need expressed by Revelas J to consult prior to terminations seems to finds its origin in the Industrial Court inter alia in Johane v Rand Mine Milling & Mining (1995) 16 ILJ 1249 (IC).

Moshoana AJ in Rockliffte v Mincom (Pty) Ltd [2007] ZALC 58; (2007) 11 ELLR (LC) at paragraphs [36] and [37] disagreed with the view that an automatic unfair dismissal can only be procedurally unfair as “there is no basis upon which an automatically unfair dismissal could be procedurally fair only. In terms of section 188(1) a dismissal that is not automatically unfair if the employer fails to prove the dismissal was effected in accordance with a fair procedure. The wording of the section suggests that automatically unfair dismissals become so if the reason for it is prohibited. It does not matter if some form of procedure proceeds [sic!] such a dismissal” but followed Zondo J’s reasoning in finding that “[i]n an automatically unfair dismissal claim the inquiry ends at the point where, if a defence or having reached an agreed age is raised, such age has been reached. What happens afterwards is immaterial unless a defence of waiver is successfully raised’.

Pertinently, Professor John Grogan in “No Work for the Aged” (Employment Law: Volume 14 No. 6 (March 1999)) criticizes Schweitzer v Waco Distributors (a division of Voltex (Pty) Ltd) on the basis that “[i]f, as the Judge appears to suggest, every indefinite-period contract which contains a compulsory retirement clause is, in fact, a protracted fixed term contract that terminates automatically when the employee reaches retirement age, what purpose is served by Section 187(2)(b)? The dismissals to which it refers can, on this view, never happen. Furthermore this reasoning does not address Judge Zondo’s concern about the unfairness of giving employers carte blanche to dismiss employees whom they have permitted to work beyond retirement age. The answer to that, one would have thought, lies in the actual wording of Section 187(2) (b). It says a dismissal is fair if the employee has reached retirement age, not when he reaches it”.

At the outset this is with respect not what Zondo J (as he was then) in Schweitzer v Waco Distributors (a division of Voltex (Pty) Ltd) suggests, in fact it is exactly the opposite, i.e. that the a dismissal in terms of section 187(2)(b) of the LRA cannot be equated to the termination of a fixed term contract as fixed term contracts are expressly excluded from the definition of dismissal.

Further and prior to turning to the cases which stand critical of Schweitzer v Waco Distributors (a division of Voltex (Pty) Ltd), one might regard the dicta in Wanless v Fidelity (Pty) Ltd [2007] ZALC 107where D. Pillay J at paragraph 32 found that “[t]he Court accordingly finds that Mrs Wanless was not dismissed. Her services terminated in accordance with her contract of employment when she reached the retirement age of age 60. Section 187(2)(b) of the LRA stipulates that dismissal based on age is fair if the employee has reached the normal or agreed retirement age. Therefore, in so far as Mrs Wanless suggested that her services were not terminated by the effluxion of time but at Fidelity’s will, section 187(2) makes it clear that such a dismissal would be fair”.

It is unclear as to why D. Pillay J initially concluded that the applicant was not dismissed as it appears trite that section 187(2)(b) of the LRA deals with a dismissal.

The criticism aired by Professor Grogan’s finds at least obiter support in Datt v Gunnebo Industries (Pty) Ltd [2009] ZALC 23; [2009] 5 BLLR 449 (LC) per Steenkamp AJ (as he was then) at paragraph 27 and clear support in Randall v Ivor Michael Karan t/a Karan Beef [2010] ZALC 114; (2010) 31 ILJ 2449 (LC) where Francis J records that “[i]t cannot and is not our law that an employer can unilaterally decide when to retire an employee who it has required to work beyond his retirement age… The position would have been different if the applicant was dismissed after he had reached his retirement age. He would have had no claim. Where the respondent on its own decided to keep him in employment beyond that period there would have to be a fair reason to terminate his services”.

Though the ratio in Randall v Ivor Michael Karan t/a Karan Beef appears in line with the principles of fairness applicable to the limitation of statutory and constitutional rights, the interpretation afforded in Schweitzer v Waco Distributors (a division of Voltex (Pty) Ltd) appears more correct.

In the end one thus has to agree with Bosch in ‘Section 187(2)(b) and the Dismissal of Older Workers – Is the LRA Nuanced Enough?’ ((2003) 24 ILJ 1283 at 1303) who opines that “[w]here an employee has been dismissed upon or after attaining the agreed or normal retirement age for an employee employed in that capacity, it has been held that section 187(2)(b) operates to preclude employees from challenging the fairness of that dismissal. Section 187(2)(b) also appears to limit the right to equality. It is a justification for dismissals that might otherwise be considered unfairly discriminatory on the grounds of an employee’s age. While there might be sound policy arguments for permitting mandatory retirement ages, that must be done in light of the constitutional guarantee of equality and fair labour practices”.

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