Employment law update – Employee seeking to ‘dodge’ retirement by taking leave that extended beyond her retirement age

May 1st, 2023

In Mocwaledi v Premier of the Northern Cape Province [2023] 3 BLLR 254 (LC), the employee, after 32 years of service with the Department, attained the age of 65 years in January 2019. The Department granted the employee annual leave until early February 2019. Four days after the employee had returned to work, she was advised that her salary had been stopped and she had been removed from the Department’s Persal system because she had passed the retirement age.

Disgruntled by the Department’s conduct, the employee referred an automatically unfair dismissal dispute to the Labour Court (LC) claiming that she had been dismissed because of her age. In doing so, the employee alleged that she had not received a retirement letter advising her that her retirement was imminent nor had the Department consulted with her in this regard. Moreover, two of her fellow employees had continued working for the Department after the age of 65 years, which she contended amounted to inconsistent treatment.

The Department denied that the termination of the employee’s employment amounted to an automatically unfair dismissal. The Department alleged that the employee was aware that the retirement age in place was 65 years and that she had tried to ‘dodge’ her retirement by taking annual leave. Further, she had evaded employees who had attempted to deliver her retirement letter to her residential address.

The LC noted that s 187(1)(f) of the Labour Relations Act 66 of 1995 (LRA) provides that a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against an employee on, inter alia, the basis of age. However, in terms of s 187(2)(b) of the LRA, a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons in that capacity. In this regard, the Public Service Act 103 of 1994 provides that the retirement age for public service members is 65 years. On the evidence before the court, there was no question that the employee had reached the statutory, normal retirement age on her 65 birthday.

The court held that when applying for leave when she did, and it being granted, the employee may have believed that her services were needed beyond her retirement age. However, this was no more than wishful thinking on the employee’s part. While the Department was at fault for delivering her retirement letter late and not at least thanking the employee for her lengthy service and contribution, this treatment did not render the employee’s retirement an automatically unfair dismissal.

The Labour Appeal Court (LAC) has recently held that even where an employee is kept on after the agreed or normal retirement age, an employer may nevertheless fairly terminate the employment relationship at a later stage. In this regard, the LAC found that while a dismissal of an employee on the grounds of age prior to reaching retirement age may have the effect of impairing the right to dignity of that employee, the dismissal of an employee who has passed their retirement age would not. This is because employees with agreed or normal retirement dates anticipate that they will work until they reach retirement age and are expected to prepare financially for their retirement.

Having regard to the facts of the matter, and to the LAC judgment by which the court was bound, the LC held that the termination of the employee’s employment did not amount to an automatically unfair dismissal. While the circumstances around the termination may have reflected a lack of professional work practice by the Department in that annual leave was granted for a period after the employee’s retirement date, the fact that the employee worked after her retirement date could not assist her claim.

The application was dismissed.


Ignoring workplace discrimination can be costly for employers

In Solidarity obo Oosthuizen v South African Police Service and Others [2023] 3 BLLR 258 (LC), the employee, Lieutenant Colonel Oosthuizen (Oosthuizen), was employed by the South African Police Service (SAPS) as a Human Resources officer situated at the Klerksdorp Police Station. Oosthuizen took corrective action against two of her subordinates, each warrant officers. Thereafter, an altercation occurred in which both warrant officers accused Oosthuizen of calling them the ‘k-word’. Oosthuizen reported the incident to SAPS and two officers were appointed to investigate her complaint.

The parties lodged criminal cases against each other and shortly thereafter, Oosthuizen was transferred to another station at the request of the warrant officers pending the outcome of the internal investigations. On the conclusion of the investigations, both officers independently recommended that disciplinary action be taken against the warrant officers. As a result, Oosthuizen filed a grievance requesting that disciplinary action be taken against the warrant officers for falsely accusing her of calling them the ‘k-word’.

Instead of proceeding with the disciplinary action, SAPS decided to suspend the disciplinary action pending finalisation of a grievance that was lodged by the warrant officers against Oosthuizen. Oosthuizen then referred a further grievance due to SAPS failure to proceed with the disciplinary action. After Oosthuizen referred the dispute to the Commission for Conciliation, Mediation and Arbitration, she received a notice to attend a disciplinary hearing for using the ‘k-word’. She was, however, acquitted of all charges and the presiding officer found that the warrant officers had colluded to falsely accuse Oosthuizen.

As a result, SAPS then proceeded to discipline the warrant officers, with one of them being acquitted and the other pleading guilty and receiving a written warning coupled with one day’s leave without pay. However, the warrant officers were subsequently found guilty of crimen injuria by a Regional Court in respect of the charge laid by Oosthuizen and, consequently, they were subject to a second disciplinary hearing and dismissed.

Solidarity, on behalf of Oosthuizen, challenged the conduct of SAPS in failing to deal with her grievances pertaining to the unfair discrimination. The issue before the Labour Court (LC) was accordingly whether SAPS was vicariously liable in terms of s 60 of the Employment Equity Act 55 of 1998 (EEA) for the racial harassment and bullying perpetrated by the warrant officers against Oosthuizen.

Broadly speaking, s 60 of the EEA provides that where an employee contravenes a provision of the EEA, the alleged conduct must immediately be brought to the attention of the employer and the employer is required to consult all parties and take necessary steps to eliminate the alleged conduct. If the employer fails to take the necessary steps and it is proved that the employee had contravened the EEA, the employer will be deemed to also have contravened the EEA. However, an employer will not be liable for the conduct of the employee if the employer is able to demonstrate that it did all that was reasonably practicable to ensure that the employee would not contravene the EEA.

The EEA prohibits unfair discrimination on a number of grounds, including race, or on any arbitrary ground. Moreover, harassment is identified as a specific form of unfair discrimination, which is prohibited on any one or a combination of the grounds of unfair discrimination. Where unfair discrimination is alleged on a listed ground, the employer has the onus of proving, on a balance of probabilities, that such discrimination did not take place as alleged or it was rational and fair, or otherwise justifiable. In the present matter, the application involved an allegation of discrimination based on race and, accordingly, SAPS bore the onus of disproving the allegation.

The issues for determination before the LC were as follows –

  • whether the conduct of the warrant officers in harassing and falsely accusing Oosthuizen of racism constituted unfair discrimination;
  • whether SAPS failed to act in accordance with s 60 of the EEA and as such was vicariously liable for contravening the provisions of the EEA; and
  • the relief in the event that SAPS was found to have contravened the EEA.

The court held that although the use of racial slurs stubbornly persists in South African workplaces, there is a growing and disturbing trend of false claims of racial and sexual harassment by subordinates to escape being disciplined. Oosthuizen’s version of what had occurred when she had tried to discipline the warrant officers had gone unchallenged and one of them had admitted that he had behaved offensively. Yet SAPS did nothing. It was abundantly clear to the court that Oosthuizen had been harassed by her two subordinates.

The court noted that an employer’s duty to take steps to eliminate harassment when an allegation is made within a reasonable time period is now codified in the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, which renders employers vicariously liable for harassment in terms of s 60 of the EEA if they fail to take appropriate steps to address the harassment. In the present case, it was common cause that SAPS was made aware of the harassment as soon as it took place and had initially taken immediate action to investigate the conduct. However, the investigation reports that had recommended disciplinary action against the warrant officers were not implemented and, instead of taking appropriate steps to prevent the harassment, SAPS had done everything in its power to protect the perpetrators while they engaged in racial harassment.

After an analysis of the evidence, it was apparent that SAPS had failed to consult all relevant parties and to take the necessary steps to eliminate the racial harassment within SAPS. There was no evidence to demonstrate that SAPS did all that was reasonably practicable to ensure that the warrant officers would not racially harass Oosthuizen or act in contravention of the EEA. In the circumstances, the court was satisfied that for a period of about a year, Oosthuizen was disparaged and humiliated by the conduct perpetrated by the warrant officers. SAPS was, therefore, vicariously liable for the racial harassment.

In seeking compensation for the humiliation and insult that Oosthuizen had suffered, the court found that Oosthuizen was entitled to payment of compensation in the amount of R 300 000. Further, SAPS was directed to provide Oosthuizen with a written apology and to pay her costs.

Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.

This article was first published in De Rebus in 2023 (May) DR 42.