n SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - 'Till age do us part' : an automatically unfair dismissal based on an employee's age : : case comments




A dismissal is automatically unfair if the employer unfairly discriminates against an employee on the basis of any of the grounds listed in s 187(1)() of the Labour Relations Act 66 of 1995 (LRA). In other words, the employer cannot raise a defence for such a dismissal. This is a form of dismissal that cannot be categorised as misconduct, incapacity or a dismissal based on operational requirements of a business. But s 187(2)() provides an 'escape clause' stating that :

'(2) Despite subsection (1)()-

() a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.'

This exception has proved problematic, for it does not apply in all circumstances. This was illustrated in ([2009] 5 BLLR 449 (LC) ()), where, after an employee reached the normal or agreed retirement age, his contract was extended to an unspecified date but later terminated unilaterally by the employer because of the employee's age. The employee then challenged his dismissal on the ground that it was an automatically unfair dismissal.

Here I will interpret s 187(2)() and evaluate the Court's decision.


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