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Can an employee be forced to retire?

The issue of if an employer can force an employee to retire was under the spotlight once again when former national commissioner of correctional services, Tom Moyane, announced to the media that "he had been 'retired'" because he had supposedly reached ‘retirement age’. Media reports reveal that Moyane was appointed on a five-year, fixed-term contract of employment in 2010, at the age of 57, and this contract was only due to expire in 2015. Is terminating an employee's services at retirement a fair dismissal or discrimination on the grounds of age?

Facts of the case:

• The department of correctional services announced that Moyane had reached the retirement age so his services were being terminated. He had turned 60 in January 2013, which appears to be either the agreed or normal retirement age of the relevant department.
• In terms of s187(1)(f) of the Labour Relations Act, 66 of 1995 (LRA), if the employee alleges that the reason for dismissal was because the employer unfairly discriminated against him based on age, this would automatically make it an unfair dismissal.
• However, s187(2)(b) of the LRA states that a dismissal based on age is fair if the employee has reached the agreed retirement age for persons employed in that capacity.
• The court found that the employee had received two letters in which the employer had reserved the right to decide when he should retire.
• In the case of Mr Moyane, it is believed that while the Department of Correctional Services would have been justified to terminate his services upon retirement, the entering into a fixed term contract of employment so close to retirement age, adds a different dynamic to those set of facts.

Given the above, an employer may force an employee to retire when he reaches an agreed retirement age or an age which is the standard retirement age for employees of that employer.

If there is no agreed retirement age, an employer will be able to terminate an employee's services at the normal retirement age. A normal retirement age can be determined in various ways:

• An established practice applied consistently in the workplace over time,
• A policy in which the retirement age is provided, or
• A retirement age that is indicated in the rules of the pension or provident fund, which the employer accepts as the normal retirement age.