Rubin Sportswear v SACTWU others (2004) 25 ILJ 1671 (LAC)

Principle:

Where there is no agreed or normal retirement age, it will be an automatically unfair dismissal to dismiss an employee at an age decided unilaterally by the employer.

Facts:

Employees in a company with no agreed or normal retirement age were automatically transferred in a sale of a business to another company which did have a normal retirement age of 60. They were notified by their new employer that it was fixing a retirement age of 60. Although the employees did not agree, they were later dismissed for reaching the age of 60. They alleged an automatically unfair dismissal on the grounds of unfair discrimination on the basis of age. The Labour Court and the Labour Appeal Court held that where there is no agreed or normal retirement age it will be automatically unfair to dismiss an employee simply for turning 60.

Extract from the judgment:

[at 1678J]   It seems to me that the word 'normal' as used in s 187(2)(b) really means what it says. It means that which accords with the norm.

[1679B]   It seems to me conceivable that one employer could have different normal retirement ages for different categories of employees within its workforce... In other words, where an employer seeks refuge in the provisions of s 187(1)(b) against a claim of unfair dismissal and his defence is that the employee has reached normal retirement age, he must show not only that the employee had reached normal retirement age but that the retirement age is normal to employees employed in the same capacity as the employees concerned.

[at 1679H]   In my view a certain age cannot suddenly become normal retirement age for employees or for a certain category of employees simply because the employer wakes up one morning and decides that he wants a certain age as the normal retirement age for his employees or for a certain category of his employees. He can put a proposal to his employees on what should be an agreed retirement age in that workplace applicable to all those who have agreed to the proposal. A retirement age that is not an agreed retirement age becomes a normal retirement age when employees have been retiring at that age over a certain long period... If the period is not sufficiently long but the number is large, it might still be that a norm has not been established.