'Will you still need me, will you still feed me, when I’m 64?' sang The Beatles. But sadly, it does happen that our employers often no longer need us when we reach a certain age. We look at what your rights are if you are told you have reached retirement age and your employment is therefore terminated.

If your Employment Contract and Company Policies do not mention retirement age, often the only reference made to early or normal retirement age can be found in the Rules of your Provident or Pension Fund.

So is there any recourse of your employment is terminated?

The Labour Court in a reported matter, SACTWU v Rubin Sportswear (2003) 24 ILJ 429 (LC), views the fact that a provident fund defines 'retirement age' merely to confer a right on the employee who is a member of the fund to claim his or her benefits within a set age bracket. Waglay J continued to state that "The ages set out in the documents regulating such funds could therefore be taken to mean that the employee must retire from the fund when she reaches a certain age, but need not necessarily retire from the employer's employ."

The Labour Relations Act 66 of 1995, Section 187 (2)(b) is clear in 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".

Normal or Agreed Retirement Age
The “agreed” retirement age will clearly be defined in a Contract of Employment or in a Policy of the Employer. In the absence of an agreed retirement age the normal retirement age becomes a question of Law.

The Employment Appeal Tribunal in Ord v Maidstone and District Hospital Management Committee [1974] IRLR 80 (EAT) was of the view that where there was no contractual (or agreed) retirement age 'normal retiring age' meant 'the age at which the employee(s) concerned usually retires'.

To further define the EAT’s view, Craig Bosch (Senior Lecturer, Faculty of Law, University of the Western Cape), suggests that unless the retirement age is agreed to in the contract of employment...it is not an 'agreed' retirement age in the sense intended by s 187(2)(b).

In conclusion he defines the word 'normal' in the context of a normal retirement age might be taken to mean usual.

In light of the above, how then to establish usual retirement age?

The Labour Court in SACTWU v Rubin Sportswear (at 432-3) accepts that a normal retirement age could be established by way of evidence as to the employer's 'general practice' in retiring employees. It went on to state that "normal retirement age in the context of s 187(2)(b) implies the age at which the employer requires the employees to go on retirement, not where the employee is entitled to go on retirement if he/she wishes to do so".

From the above rationalisation it can be said that the normal or usual retirement age will differ from Employer to Employer. The test to establish normal retirement age will be by way of determining: whether any Employee(s) currently and previously employed by the Employer worked beyond sixty five (65); and to determine the age these Employees’ "normally" retire.

In conclusion, there is a liability on every Employee to establish whether they agreed in terms of a Contract or Policy to retire at a certain age; or what the normal retirement age with an Employer is.

Article by Tiekie Mocke, MISA Legal Department.

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