Employees turn to the Constitutional Court to challenge retirement dismissals

A group of elderly people walking in Newlands Forest. File picture: Armand Hough/African News Agency(ANA)

A group of elderly people walking in Newlands Forest. File picture: Armand Hough/African News Agency(ANA)

Published Nov 6, 2023


Cape Town - Seven former employees dismissed some years after reaching their contractual retirement age of 60, but not on it, have turned to the Constitutional Court to challenge their former employers’ decision to rely on their age for grounds for dismissal.

The apex court heard two applications for leave to appeal against decisions of the Labour Court and Labour Appeal Court, which found in favour of the employers.

The first application was brought by the Motor Industry Staff Association (Misa) and Willem Landman, a member of Misa, against the Great South African Autobody (GSAA).

The second application was brought by trade union Solidarity, acting in its own interest and that of six former employees, against the State Information Technology Agency.

In Misa and Landman’s case, the court heard that when Landman turned 60 in 2018, the GSAA did not dismiss him despite section 187(2) (b) of the Labour Relations Act (LRA) providing for an employer to dismiss an employee based on an agreed retirement age.

Landman had worked for an additional year after turning 60 years old, and was subsequently dismissed on the basis that he had previously turned the retirement age.

Aggrieved, Landman and Misa argued that GSAA had waived its right to rely on the retirement age when Landman continued working, and that a new contract came into effect, which did not contain an agreed retirement age.

The GSAA argued that Landman’s dismissal was fair based on the LRA, which the Labour Court agreed with. The decision was also affirmed by the Labour Appeal Court.

The six members of Solidarity were also not dismissed on turning 60, and continued working before they were dismissed at various times during 2017.

Solidarity said that the members were part of the Alexander Forbes Pension Fund, of which the rules provide that if an employee is not dismissed on reaching the retirement age agreed to in contract, the employee will later be dismissed or leave at a date agreed to.

These rules, the trade union argued, imposed a unilateral imposition by an employer for retirement age, without considering the personal circumstances of the employee.

“In the applications, the applicants seek an order that their dismissals be declared automatically unfair pursuant to section 187(1)(f) of the LRA,” the trade union added.

“In the first application, the payment of compensation amounting to 24 months’ salary is also sought.

“In the second application, the applicants seek an order, in the alternative, finding their dismissals to be unfair under section 188 of the LRA.

“The applicants in the second application further seek an order for their respective retrospective reinstatements, and alternatively, the maximum compensation in line with the ruling regarding the fairness of their dismissals.”

Cape Argus