Introduction:
In
South Africa, laws prohibit unfair discrimination in employment based on age.
However, certain provisions allow for fair dismissal upon reaching the normal
or agreed retirement age. The case of Seokwane v Bidvest
Prestige Cleaning Services explores the application of these laws in a
situation where an employee claimed unfair dismissal due to age.
Facts
of the Case:
Bidvest
Prestige Cleaning Services (Pty) Ltd (the respondent) employed Rosy Seokwane (the
applicant) under a fixed-term contract starting in July 2019. She was 62 years
old at the time of employment, exceeding the agreed retirement age of 60
specified in her contract. In June 2020, during the COVID-19 lockdown, her
supervisor advised Seokwane that she would be retrenched due to exceeding the
retirement age. Despite requesting to work until October 2022 to pay off debts,
she was retired on 30 June 2020.
Bidvest
Prestige Cleaning Services claimed that Seokwane was retired due to operational
requirements, as its client, Volkswagen (VW), requested a reduction in staff.
Despite initially hesitating to employ Seokwane due to her age, they relented
at VW's insistence.
Court's
Findings:
The
court scrutinized the respondent's actions and determined that the dismissal of
Seokwane was automatically unfair. Despite relying on clauses in the employment
contract and retirement policy, the court found that the respondent's conduct
violated fair retirement practices. The respondent's decision to employ
Seokwane, knowing her age, and then retire her due to operational requirements
was deemed discriminatory. The court emphasized that retirement should not be
used as a pretext for dismissing employees based on other reasons.
The
court awarded compensation to Seokwane equivalent to 12 months of her
remuneration, considering the circumstances of the case and the respondent's
failure to provide adequate notice or fair treatment.
Conclusion:
The
case of Seokwane v Bidvest Prestige Cleaning Services highlights the importance
of fair treatment and non-discrimination in employment, particularly concerning
the elderly. It underscores the need for employers to adhere to legal
provisions regarding retirement and to avoid using age as a basis for
dismissal. The judgment serves as a reminder that employees should be afforded
proper notice and consideration, especially when facing retirement.
