Page 4 - KZN Business Sense 9.6

DISMISSALS BASED ON RETIREMENT AGE

Johan van Deventer, KZN automatically unfair as it was employee has reached the agreed
Regional Manager, based on unfair discrimination or normal retirement age, the
LabourNet relating to age, a prohibited dismissal is deemed fair. The
ground in terms of s 187(1)(f) of section does not prescribe a time
his case the LRA 1995. The dispute was to frame within which the dismissal
decided in some extent spurred by the fact should take place, provided it is
Tthe Labour that the employee was a member after the employer has reached
Appeal Court in of the Motor Industry Provident his or her agreed or normal
2022 turns on Fund, which provided that the retirement date. This effectively
the application retirement age of an employee means that an employer has the
of clauses who was a member of the fund right to fairly dismiss an employee
relating to was 65. The employee also based on age at any time after the
retirement age claimed that once an employee employee has reached his or her
in employment reached his contractual agreed or normal retirement age.
contracts, and retirement age and neither party
the fairness of dismissals based on enforced the provision regarding The employee had contended
an employee’s age. retirement, the employer could that if an employer is permitted
to rely indefinitely on an agreed
The employee in question had not thereafter rely on the or normal retirement age as
been employed by the company in clause to effect termination. a basis for dismissal once The court also rejected the to or normal retirement age has
November 2007, and in January The employee believed a new retirement age was reached, this argument that a new contract been reached. As the employee
2008 signed an employment contract came into effect after would leave the employee in a came into effect once the agreed had reached the contractually
contract which stipulated that retirement age was reached, vulnerable position by enabling retirement age was reached. The agreed to retirement age, the
the employee’s retirement age and it was up to the employer to the employer to abuse its position employment contract does not employer was thus fully within
would be at 60 years of age. The show that a new retirement age to dismiss the employee based terminate by the effluxion of their right to terminate the
employee turned 60 on 15 March was agreed to, or that a normal on his age. The court disagreed time when the employee reaches employee by giving notice. The
2018, but he was not terminated retirement age existed. with this argument, clarifying his or her retirement age but dismissal was ruled to be fair,
by the company at that stage and The court’s decision on that an employer would only be is deemed to continue on the and the employee’s case was
continued working under the this matter rested on the protected by s 187(2)(b) if the same terms and conditions in dismissed. 
same terms and conditions he interpretation of s 187(2)(b) of reason for, or proximate cause of force before retirement age is
had been under prior to reaching the LRA, which stipulates that the dismissal is that the employee reached. The retirement age T: +27 (0)31 266 6570
retirement age. On 14 January ‘a dismissal based on age is fair has already reached retirement thus remains unchanged. C: +27 (0)82 786 7480
2019, the employer notified the if the employee has reached the age. An employer would In this case, it was clear that E: johanvd@labournet.com
employee that his services would normal or agreed retirement age therefore not be able to invoke the reason for dismissal was W: www.labournet.com
terminate on 12 February 2019, for persons in that capacity’. The the retirement age as a reason based on the employee’s age, and
due to having reached the agreed wording of the section is clear and for dismissal where the real not some other reason. In terms
retirement age of 60. reason for the dismissal is based of s 187(2)(b) it is not unfair to
unambiguous, and on its ordinary
The employee referred a dispute meaning, once the employer on operational requirements, discriminate against a person on
claiming that his dismissal was proves that the dismissed misconduct, or incapacity. the basis of age where the agreed

BECOME A KZN FUTURE50 BUSINESS

ast Coast Radio (ECR) has ■ Exposure on their website
partnered with business (600 000+ unique users) &
Egrowth specialist Pavlo Facebook (470k followers)
Phitidis on a campaign to ■ Get the people of KZN focused
highlight the vital importance on what your business needs to
that established businesses hold get to its next level.
for KwaZulu-Natal’s growth and ■ Be one of only fifty KZN
prosperity. business to watch.
Pavlo, together with Aurik’s The conversation will be about
co-founder, has started, built, and your business, what it does, why
sold 12 businesses in nine years that matters and a call out to
and he continues to drive Aurik’s the audience to get behind your
growth as CEO. Aurik works success and growth.
with established business owners
to accelerate revenue growth and If your next level growth
build value. opportunity is, amongst others,
more customers, a funder, a key
Called The KZN Future50, the supplier, a specialist employee,
weekly radio feature takes the shape access to information, or a listing
of a conversation between Pavlo with a retailer, Pavlo will extract
and hosts Darren Maule and Sky it from the listeners and bring it
Tshabalala featuring the KwaZulu- home to you.
Natal business of the week.
Companies that have been
Why become a KZN Future50 featured include Serco Industries,
business? Airshot, FutureLife, Joekels Tea
Packers, Stealth Kayaks, Ordev and
■ The intention is to support
the business community, so this Blinds Syndicate, amongst others.
comes at no cost (yes, really) to This opportunity is open to
the business featured. any KZN business to apply, the
■ Advantages include: ECR team will choose who gets
■ Exposure to ECR’s 1,3 million featured. To listen to some featured
listeners at 8.10 am, Tuesday companies and to apply visit:
morning peak traffic radio. www.ecr.co.za/KZN-Future-50. 

4