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Retirement: What does legislation say

- Featured article by LAWYERS-ONLINE.CO.ZA

When is the ‘ right ’ time to retire?

Eventually we will all have to stop working. Some people prefer to retire at an early age while others choose to work for as long as possible. Whatever your preference, you need to be informed of your rights and options.

The labour legislation does not deal directly with the issue of retirement age. However, it does say that no one may be unfairly discriminated against because of their age. This means that the employer and employee must agree on a retirement age upfront or in their em ployment contract. It is preferential that the agreement be reduced to writing.

If you sign an employment contract that stipulates a specific retirement age, then you will legally be required to retire at that age. The company will not be required to give you notice.

If the retirement age is not in the contract but is agreed upon by the employer and employee , then the employer can give you notice requiring you to retire at that age. The notice period will be the same as the notice period for termination of employment set out in your contract of employment.

Another alternative is that you can continue to work until you are unable to do your job properly. Your employer can only terminate your contract in accordance with the labour legislation (ie. misconduct , operational requirements or incompetence) and will have to follow the procedures set out in your contract and labour law.

In Rubin Sportswear v SA Clothing & Textile Workers Union and others (2 004) 25 ILJ 1671 (LAC), the Labour Appeal Court held, “Section 187(1)(b) creates two bases upon which an employer can justify the dismissal of an employee on grounds of retirement age. The one is an agreed retirement age; the other is normal retirement age. Those are the only two bases.”

In Cash Paymaster Services (Pty) Ltd v Browne (2006) 27 ILJ 281 (LAC), the LAC held that “the provision relating to the normal retirement age only applies to the case where there is no agreed retirement age between the employer and the employee.”

Date: 12th November 2013
Legislation - Case Law: 1. Rubin Sportswear v SA Clothing & Textile Workers Union and others (2004) 25 ILJ 1671 (LAC)
2. Cash Paymaster Services (Pty) Ltd v Browne (2006) 27 ILJ 281 (LAC )

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