When setting the retirement age in your company, ensure that your policy is based on solid industry standards. If it is not, you could find yourself having to pay thousands that you had not budgeted for as was the case in Brian Joffe t/a J Air v Commission for Conciliation Mediation & Arbitration and others – (2019) 28 LAC 1.111.3.

A commercial air transport operator employed only two pilots, H and P, who both turned 60 in the same year. The employment of both pilots was governed by the Civil Aviation Regulations, which prohibited pilots over the age of 60 from piloting international air transport operations except as a member of a multi-pilot crew.

The employer informed H that he had employed another pilot and that his (H’s) services would not be required after three months. H referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) claiming that he had been unfairly dismissed for operational requirements.

The Commissioner argued that the dismissal was substantively and procedurally unfair and ordered the appellant to pay H compensation equal to three month’s salary plus severance pay.

On review, the Labour Court noted that the Labour Relations Act (LRA) provides that a dismissal based on age is fair if the employee has reached an agreed or normal retirement age for persons employed in the same capacity. The employer did not have an agreed retirement age for its pilots and relied exclusively on the regulations. On analysis, the regulations do not prohibit a pilot at 60 from flying on international commercial flights and they merely attach conditions to them doing so.

The Court held further that the appellant had not consulted over alternatives suggested by H that might have saved his job. His dismissal was a fait accompli and also both substantively and procedurally unfair. The appeal was dismissed.

Contact Global Business Solutions

The way that you can avoid issues, such as the one above, from escalating in your company, is by making sure that you have the correct policies in place from the get-go. John Botha – as well as the entire Global Business Solutions team – are on hand to help you with the drafting. Follow this link to contact him.