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Introduction
Mr P Viljoen had his 60th birthday coming up in October 2020. On 28 September 2020, a few weeks before his 60th birthday, his employer informed him that he was due to retire per the company's retirement policy. Aggrieved by this, Mr Viljoen pursued an automatically unfair dismissal dispute in the Labour Court after his employment was terminated. We discuss the Labour Court's decision in this matter.
Facts
On 28 September 2020, Mr Viljoen was advised that he was approaching his retirement age of sixty as per the company's retirement policy. Clause 4.6 of Mr Viljoen's employment contract read: “The employment shall terminate automatically on the employee's 60th birthday.” Additionally, “With reference to paragraph 4 of the Permanent Contract of Employment, it is recorded that it is the company's retirement policy to retire employees, both permanent and temporary on attaining the age of 60 years old”. Accordingly, Mr Viljoen's employment was terminated 12 October 2020.
Parties' arguments
Mr Viljoen's case before the Labour Court was that his retirement was automatically unfair because two other employees, two foremen (Messrs Mthiya and Ragmaan), were allowed to continue working beyond the age of 60. In response, PPEW indicated that the reason for the different retirement ages was the nature of the work done and the roles occupied by those two employees.
Court's decision
The Labour Court found that the two employees were not in the same “occupational category” as Mr Viljoen. Mr Mthiya was subject to a different retirement policy, as he was employed as a dispatch supervisor at HQ Operations. Mr Ragmaan was part of the supervisory staff, who had a retirement age of 65.
The Labour Court held that having different retirement ages for different categories of employees is permissible. This is because section 187(2)(b) of the LRA provides that “a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.” The court also confirmed the position that an employer has the right to implement a mandatory retirement age.
Mr Viljoen held the position of an artisan. Artisans employed by PPEW were subject to a retirement age of 60. PPEW's supervisory staff were subject to a retirement age of 65. Mr Viljoen was not part of the supervisory staff. Therefore, holding Mr Viljoen to a retirement at the age of 60 but having a different retirement age for Mr Ragman and Mr Mthiya did not constitute discrimination and so the dismissal was not automatically unfair.
Conclusion
The court dismissed Mr Viljoen's case. This decision confirms an employer's entitlement to have different retirement ages for different categories of employees.
[1] Annexure to employment contract, as set out in para 9 of the judgment.
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