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Fin24 reports that in terms of "settled" law, employers who have allowed employees to work beyond the normal or agreed retirement age, could at any time thereafter serve them with a notice of dismissal on the basis of them having reached their retirement age.
While four of the nine judges of the Constitutional Court (ConCourt) upheld that position in a recent judgment in two joined cases, four other judges came to the opposite conclusion. The remaining judge came to his conclusions based on a different reasoning altogether. This has unfortunately created widespread confusion with no clear direction for employers. From a practical point of view, the authors of this article recommend that employers should adopt the following approach: Ensure, as far as is reasonably practicable, that all contracts of employment provide for an agreed retirement age. Engage with employees well in advance to remind them of the approaching retirement date and associated consequences, such as handing over, administrative arrangements surrounding retirement benefits, etc. Do not permit an employee to work beyond the normal or agreed retirement age, unless you have entered into a written agreement that specifies a 'new' retirement date. Ensure that the normal guidelines for substantive and procedural fairness are followed if the employee is dismissed for any reason other than age (e.g. misconduct, incapacity or operational requirements).
- Read the full original of the informative report in the above regard by Jan Truter & Barney Jordaan at Fin24 (subscription or trial registration required)
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