There is no employment retirement age prescribed by law in South Africa. An employer can agree on an age with their employees. Alternatively, they can follow a standard practice of requiring employees to retire at a particular age which is normally based on an agreed-to retirement age or through the organisation’s policies and procedures.
Many employees remain productive beyond the agreed-to or ‘normal’ retirement age. They continue working well into their golden years. The question that often arises in the workplace is when can an employer fairly terminate the service of someone who has carried on working beyond retirement age when there is no agreed-on retirement age?
South African law protects employees against unfair discrimination:
• Section 6 of the Employment Equity Act (EEA) states as follows:
“No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, and birth or any other arbitrary ground.”
• Section 2(3) of the Labour Relations Act (LRA) provides that a reason for an unfair dismissal is, for example, unfair discrimination. As such, the employee is protected as they are protected against an unfair dismissal.
From numerous cases it is clear that – unless an employer has an agreement in place through either retirement age or by a policy (implemented consistently) – the normal dismissal rules and regulations will apply. This means employees can only then be dismissed through following misconduct, incapacity or operational requirement procedures.