Nov 02, 2023 MISA, the Motor Industry Staff Association, Labour Relations Act (LRA), Dr Gerrie Ebersöh
Employees past retirement age left at the mercy of the Employer
It can never be fair to leave employees who continue working past retirement age in a Master-Servant situation at the mercy of the employer. The employer can also not be allowed to indefinitely exercise the right to put the employee on retirement in accordance with the Labour Relations Act (LRA).
If the employer does not exercise this right within a month after the employee reached retirement age, the employer waived or forfeited the right. This was the argument Dr Gerrie Ebersöhn put to the Constitutional Court today on behalf of MISA, the Motor Industry Staff Association, representing more than 61 000 members in the retail motor industry.
MISA's ground-breaking case on the principal of continued employment after reaching the contractual retirement age was heard. The Union appeals a ruling of the Labour Appeal Court on the alleged unfair dismissal of MISA member Willem Landman (62) based on his age.
Ebersöhn told the Court that the Union does not seek costs, but wants to establish case law regulating employment after an employee has reached the contractual retirement age. Chief Justice Raymond Zondo said the Court went 40 minutes over its Tea time because this was a very important matter to debate. If the Court finds in favour of Landman, Ebersöhn asked for a punitive cost order of 24 months’ salary against his former employer.
Landman was allowed to continue working after he celebrated his 60th birthday. His employer did not negotiate a new employment contract with him but continued as normal. Nine months after he turned 60, his employer gave Landman a month’s notice and dismissed him because he reached retirement age.
Ebersöhn argued that Landman's employment contract lapsed after he passed his retirement age. His employer failed to take action, either to rightfully terminate his employment or to renegotiate a new contract with him. Because the employer continued as normal, a new employment contract came into existence. Ebersöhn said the right to dismiss once the employee reaches retirement age, as allowed in the LRA, could never be an indefinite right because the employee would be left without any protection or judicial oversight.
"In practise this situation allows the employer to at any time, at a whim, decide to terminate the employee’s employment based on age," said Ebersöhn.
The judgement has been reserved.
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