Introduction: The Law on Dismissals Based on Age
Under
South African labour law, dismissing someone just because of their age is automatically
unfair—unless they have reached the agreed or normal retirement age
for their job. This protection comes from section 187(1)(f) read with section
187(2)(b) of the Labour Relations Act (LRA).
But
what if you've reached retirement age and your employer lets you keep working
for a while—can they then suddenly force you to retire later on?
This
tricky question has come up more often as people stay healthy and want to work
longer. Recently, the Constitutional Court considered this issue in two
cases. Unfortunately, the Court couldn’t agree on one clear answer, meaning the
law is still not settled.
Key Legal Principles
- Dismissal
based solely on age is unfair unless you’ve reached your normal
or agreed retirement age.
- The
“normal” retirement age could be:
- Written
in your contract,
- Set
out in company policy,
- Or
implied from company practice.
- If
there is no agreed or normal retirement age, your employer can’t
just pick an age and force you to retire.
Recent Case Law
1.
MISA obo Landman v Great South Autobody
Facts:
- Mr.
Landman worked beyond his agreed retirement age of 60.
- The
employer dismissed him almost a year later, citing age as the reason.
Arguments:
- Landman
said a new employment relationship started after he turned 60 and that the
employer couldn’t rely on the old retirement age anymore.
Decision:
- The
Labour Appeal Court said no new contract was created.
- Once
you’ve reached the agreed retirement age, the employer can retire
you at any time after that, provided it's not for a hidden reason
(like punishing you for something else).
2.
Solidarity obo Strydom v SITA
Facts:
- Employees
worked past their normal retirement age and were later told to retire.
Decision:
- The
Labour Court agreed with the employer: once someone passes the
retirement age, the employer can choose to retire them, as long as that
age was agreed or normal for the job.
3.
Constitutional Court Ruling
In
CCT 298/22 and CCT 346/22, the Constitutional Court considered
whether an employer may lawfully dismiss an employee for age after allowing
them to work beyond the agreed or normal retirement age. The two cases—MISA
& Landman v Great South Autobody and Solidarity obo Strydom &
Others v SITA—involved employees who reached the retirement age of 60 but
were only dismissed months or years later.
The
key legal issue was the interpretation of section 187(2)(b) of the Labour
Relations Act (LRA), which allows dismissal for age if the employee "has
reached" the normal or agreed retirement age. The Court issued three
conflicting judgments:
- Zondo
CJ held
that dismissal is only fair if it occurs on the date the employee
reaches retirement age, unless otherwise agreed. Later dismissals are
automatically unfair and open to abuse.
- Van
Zyl AJ
said employers have a limited window after retirement age to exercise
their right to terminate. If they wait too long, they may lose that right.
- Rogers
J ruled
that employers may fairly dismiss employees at any time after
reaching retirement age, provided reasonable notice is given.
There
was no majority on the legal interpretation, so the law remains
unsettled. However, the Court agreed on the outcomes:
- In
Landman, the appeal was dismissed; the dismissal was not
automatically unfair.
- In
Solidarity, the appeal was upheld; the dismissals were unfair as
the employer had agreed employees could work until 67. Each employee was
awarded 24 months’ compensation, with no costs order.
Until
a clear majority emerges, employers and employees should proceed cautiously
when continuing employment past retirement age. Clarity in employment contracts
and proactive communication remain essential.
Advice to Employees
1.
Check Your Contract
- Is
your retirement age clearly stated?
- If
not, ask your employer or HR to clarify in writing.
2.
If You Work Beyond Retirement Age
- Your
employer can still ask you to retire later, but:
- They
must give reasonable notice.
- They
must not use age to hide another reason (e.g. discrimination or retrenchment).
3.
Be Proactive
- If
you want to keep working after your retirement age, discuss it early
with your employer.
- Try
to agree on a new retirement date or contract terms to avoid
confusion.
4.
If You’re Transferred to a New Employer
- Your
existing contract and retirement terms still apply unless changed
in writing.
Conclusion
The
law says you cannot be dismissed just because you’re older—unless you’ve
reached your agreed or normal retirement age. Even then, if you work beyond
that age, your employer can still retire you—but they must act fairly and give
reasonable notice.
Because
the Constitutional Court didn’t settle the issue once and for all, it's best to
get clarity in writing, and if in doubt, seek legal advice.
