Post-retirement dismissal examined

The dismissal of elderly employees is likely to raise emotions as they usually need the income

DISMISSALS that occur after normal retirement age present employers with a specific set of circumstances that differ markedly from all other forms of dismissal.

Section 187(2)(b) of the Labour Relations Act (LRA) states that a dismissal based on age is fair if the employee concerned has reached the normal or agreed retirement age for people in the organisation employed in that capacity.

Predictably, the Commission for Conciliation, Mediation and Arbitration (CCMA) has on several occasions been required to conciliate and adjudicate on disputes relating to post-retirement age dismissals.

The dismissal of an employee who is employed beyond normal retirement date does in fact constitute a dismissal per se.

It is, however, deemed to be a termination of the contract of employ-

She added that the allegedly unfair age discrimination had also amounted to an automatically unfair dismissal.

The commissioner disagreed with the employee stating in the arbitration award that Section 187 of the LRA provided for post retirement-age dismissal.

This issue was further addressed in the CCMA arbitration matter of Freda Theunette Maritz v Pepps Mokopane Primary School terminated where the employee has reached his/her normal retirement age (see Harris v Bakker & Steyger 1993 14 ILJ 1553).

“Although I accept that in terms of Section 186(a) of the LRA of 1995, the employer dismissed the employee, I am however of the view that this was a normal termination of the employee’s employment by effluxion of time,” the commissioner said, and went on to quote Section 187(2)(b) of the LRA.

The dismissal of elderly employees is always likely to raise emotions, particularly when such employees are compelled to work to sustain themselves.

Up until recently, it was not uncommon for the employment of post-retirement age employees to come under threat during retrenchment exercises.

A mandatory retirement age cannot be introduced, or enforced, by an employer without the employee’s consent.

Predictably, employees must be fully consulted when a decision is to be made in the absence of a confirmed normal retirement date or age.

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