The question often arises as to when employees should retire and
when employers can compel such employees to retire. There is no
statutory retirement age applicable to all employees. The
retirement age should be agreed between the parties. Where there is
no agreed retirement age, an employer may retire an employee who
has reached the retirement age that is the norm. Parties normally
agree in the employment contract on a retirement ages or often
agree that the retirement age will be as per a company policy or
the rules or a retirement fund.
This was the subject of the dispute in the recent case of
Hilary Truter v Carecross (Pty) Ltd C956/2013 (2015,
unreportable judgement) where the Applicant (employee) referred a
claim to the Labour Court where she sought to declare her dismissal
from the Respondent (employer) automatically unfair as she alleged
that she was discriminated against based on her age. The facts of
the case, briefly, were as follows: the employee was informed by
the employer that she had reached the employer's retirement age
of 65 and that she would therefore be placed on compulsory
retirement. The employee stated in defence that she was the first
person from the employer to be formally retired at the age of 65
and that the only other person who had been formally retired by the
employer was an employee of 70 years. The employer alleged that it
had adopted a resolution declaring its retirement age to be 65 and
its normal retirement age is therefore 65. The court set out the
appropriate law and analysed the facts accordingly.
The court followed the authority set out in Rubin Sportswear
v SA Clothing & Textile Workers Union & Others (2004) 25
ILJ 1671 (LAC) where the court stated that the retirement age
of a company is determined firstly where there is an agreed
retirement age between the employer and employee or, failing such,
where the employee reaches the 'normal' retirement age
applicable to employees of that employer. The latter normal
retirement age is generally established through a recognised
practice of employees of that employer retiring at that age over a
long period of time.
Section 187(1)(f) of the Labour Relations Act, No 66 of 1995
(LRA), states that if an employee is dismissed based on prohibited
grounds, including age, such dismissal will be automatically
unfair. However, the employer is protected by s187(2)(b) in that a
dismissal based on age is not automatically unfair if the
employer bases such dismissal on the agreed or normal retirement
In Carecross, there was no reference to retirement age in the
employee's employment contract and the resolution of the board
declaring the retirement age to be 65 was never formally discussed
or communicated to the employee. The court therefore ruled that
there could be no agreed retirement age. Secondly, no other
employee had in the past retired at the age of 65 and further, the
only other employee who had retired, retired at 70 years old. The
employed could, therefore, also not establish that there was a
normal retirement age. The court thus held that the dismissal was
automatically unfair and ordered the reinstatement of the employee
Based on the above, it is advisable for employers to ensure that
they include an agreed retirement age when concluding contracts of
employment. Employers should also bear in mind that if they are
relying on the concept of normal retirement age, they must ensure
that such a norm has been ongoing and that it applies the norm
consistently. Should an employer be unable to show that it retired
an employee based on the agreed or normal retirement age, the
dismissal does not enjoy the statutory protection of s187(2)(b).
This means that the dismissal (for reaching a certain age) will be
unfair as it is on a prohibited ground and falls outside the
s187(2)(b) defence. Such a finding could be accompanied by an order
for reinstatement or compensation of up to 24 months'
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Employees must understand the notice periods stipulated by law. When an employee gives notice of their resignation to an employer, they is advising the employer that they will cease to work for the employer from a certain date.
Nigeria is a federal constitutional republic located on the west coast of Africa. Modern Nigeria has its origins as a British colony through the 19th and 20th century until it achieved independence in 1960.
The jurisprudential basis is pithily expressed as staying in sync with the global position on employment relationship, easily summed up as "International Labour Standard" and "International Best Practice".
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