Recruitment News
Sorry, you're too old to work?
By iol jobs
18 October 2010
A client recently asked the following: "My domestic worker is too old to work. She is 61 and I believe that she is too old to be doing the job as my domestic worker. Can I dismiss her?"
What is our law regarding retirement age and what procedures must be followed when retiring? And what monetary compensation is due a retiree?
Before the new constitution was promulgated, the presiding officer in a case involving the dismissal of an elderly man remarked that an employer should not treat people like a pair of old takkies and discard them when they feel that their usefulness has expired.
Section 9 in the constitution provides for an individual's rights to equality and not to be unfairly discriminated against.
Section 9(1) says: "Everyone is equal before the law and has the right to equal protection and benefit from the law."
Section 9(4) says: "No person may unfairly discriminate directly or indirectly against anyone on one or more grounds (including age)."
The objectives of these provisions are further legislated in terms of the provisions of section 6 of the Employment Equity Act, which states: "No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds including age."
It's important to note that discrimination based on the inherent requirements of the job is not unfair discrimination.
Does that mean that anyone, of any age, can be employed?
The answer is no - chapter 6 of the Basic Conditions of Employment Act prohibits the employment of a person of 15 years or younger.
The labour legislation does not provide us with an express retirement age. It refers to retirement in accordance with an agreement or the norm.
We know that the inherent requirements of the job may determine the ideal age of a person for a particular job, so it would not be discrimination based on age if the employer can show that age is an inherent requirement of the job.
When can an employer declare you too old to work and retire you?
There is obviously protection against arbitrary discrimination due to old age and being dismissed under the guise of retirement.
The employer must prove that it's not unfair discrimination based on age and must prove that the age at which you are being compelled to retire is the usual age at which the company generally retires a person, or the norm in that sector or industry.
It must be at the agreed retirement age (substantive fairness), and proper and fair procedure must be followed (procedural fairness).
If there is no agreement or company policy/practice or established norm, then you can continue to work until |you can no longer physically do the work.
The employer will then have to prove that you are no longer able to do the job because of your age.
The employer is obliged to give you fair notice (minimum Basic Conditions of Employment Act or as agreed) so that it does not come as a "surprise".
Although the law does not stipulate any retirement package similar to severance pay in the Basic Conditions of Employment Act, you would be entitled to any agreed contractual benefits, notice, and any provident/pension fund benefits.
Unless your agreement provides for post-retirement benefits, these will terminate upon your retirement, so it is essential that your financial affairs are in order before you retire.
Allardyce is a labour lawyer. For more information call him at 011 694 4060 or e-mail kevin@allardyce.co.za.
Source: http://news.ioljobs.co.za/article_view.php?fArticleId=5691425
