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[2023] ZALCCT 1
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Mocwaledi v Premier of the Northern Cape Province (C681/2019) [2023] ZALCCT 1; [2023] 3 BLLR 254 (LC) (19 January 2023)
IN
THE
LABOUR
COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
C681/2019
In
the matter between:
MPHEREFERE
EDITH MOCWALEDI
Applicant
and
THE
PREMIER OF THE NORTHERN CAPE PROVINCE
Respondent
Date
heard: 31 August 2022; Heads of Argument filed by 23 September 2022
whereupon judgment was reserved
Date
delivered: 19 January 2023 by means of email. Deemed received 10.00hr
on 20 January 2023
JUDGMENT
RABKIN-NAICKER
J
[1]
The applicant claims that she was dismissed from her employment on
the basis of her
age and that this amounts to an automatically unfair
dismissal in terms of section 187(f) of the LRA. She seeks
reinstatement and
compensation.
[2]
It was common cause between the parties that the applicant was
employed by the respondent
(and its precursor) for 32 years from the
1 April 1987, until 30 January 2019. She attained the age of 65 in
January of 2019.
[3]
The applicant gave evidence that she obtained approved leave from
respondent for the
period 15 January 2019 until the 4 February 2019.
She returned to the office on the 4 February, and worked for 4 days.
A colleague
then called her and asked what she was doing there and
told her she had been removed from the Persal system. She stated that
she
was shocked and went to check with the Treasury where her son is
employed, and he confirmed that this was correct.
[4]
She testified that no information had been given to her that her
retirement was imminent
and no consultation and information sharing
had taken place with her as an individual. She returned to her office
and handed over
her phone and laptop and left. Her line manager who
sat opposite her, said nothing.
[5]
The applicant told the Court that two other employees, a Ms Mafongo
and Mr Koloi had
remained in the department after the age of 65,
which she regarded as inconsistent. She had not received a retirement
letter from
the HR Department which it claimed to have tried to
deliver to her during her leave period. She was prejudiced as she had
to wait
for three months for her pension fund monies to be paid out.
[6]
The applicant was cross-examined by the State Attorney who put it to
her that she
sought to dodge her retirement by taking the leave when
she did, and did not answer her door bell or telephone when the
employer
tried to contact her about the letter indicating her
retirement date. This was vigorously denied by the applicant. The
reasons
for keeping two other persons in the Department on contract
after their retirement age, were also put to her.
[7]
The respondent brought two witnesses to give evidence, Ms Mphalele,
the Assistant
Manager of HR and Mr Virgil Fredericks, Senior Manager
responsible for HR since 2014. The gravamen of their evidence was
that the
applicant was well aware that the retirement age under the
Public Service Act is 65, and that persons who were employed before
the proclamation of that Act had also retired at 65 from the
Department. The practice in the Department is to look at who is going
to turn 65 in January of each year, and to then communicate with the
person concerned, but there is no written policy in that regard.
Many
staff are away in January and the fact that the applicant was to
reach retirement age that month was only realized late and
the
retirement letter prepared on the 18th January 2019. A submission to
the Director General of the Department regarding the retirement
of
the applicant was only made on the 30 January 2019 after the
retirement letter was dated, which was a circumvention of the normal
process. It was recommended that the applicant should be paid for the
4/5 days she reported for duty in February, but that her
retirement
age must be recorded on Persal as the 31 January 2019.
Evaluation
[8]
The applicant represented herself at the proceedings. Both she and
the state attorney
filed heads of argument. This Court must apply the
law on automatically unfair dismissal claims based on age
discrimination to
this case. In terms of section 187(1)(f) of the
LRA, a dismissal is automatically unfair if the reason for the
dismissal is that
the employer unfairly discriminated against an
employee, directly or indirectly, on any arbitrary ground, including,
but not limited
to, inter alia age. However, in terms of section
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”.
[9]
The Public Service Act provides in Section 16 that the retirement age
for public service
members is age 65. The Section also sets out
notification periods to be given by those who were employed before
the 1994 Proclamation,
and have the right to retire at an earlier
age. On the evidence before me, there is no question that the
applicant had reached
the statutory, normal retirement age on her
65th birthday in January 2019.
[10]
The applicant was well versed in the policies of the respondent,
having herself been responsible
for Corporate Services at an earlier
stage in her career. In applying for leave when she did, and it being
granted, she may have
believed that her services were needed beyond
the age of 65. While this may be considered as wishful thinking, the
stance taken
by the respondent at trial, that she was trying to dodge
retirement, was hurtful to her and she described it as an affront to
her
sense of dignity.
[11]
The Department’s omission to consider that some of its
employees may have birthdays in
January and to only do a perusal for
retirees once a year in that month, was a contributing factor to the
situation leading to
the launching of this dispute. It is also
evident that the respondent’s failure to have acted in terms of
a formal written
policy dealing with members facing retirement
compounded a situation in which the applicant felt that her dignity
had been negatively
impacted. Over thirty years of service should
surely have merited a farewell function where the applicant could be
duly thanked
for her work and contribution. The applicant made these
heartfelt feelings clear in her testimony. However, her treatment at
the
hands of the respondent did not amount to an automatically unfair
dismissal as set out below.
[12]
The Labour Appeal Court has 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. The LAC considered
the question in the context of
constitutional values and held that:
[18]
Properly construed, section 187(2)(b) does not contemplate a new
tacit contract coming into existence between an
employer and employee
(by virtue of their conduct) which governs their employment
relationship when the employee continues to work
for his or her
employer after reaching the normal or agreed retirement age. In the
same vein, section 187(2)(b) does not envisage
a tacit amendment of
the contract to the effect that the employee would continue to work
indefinitely or that a new retirement
age applies, as is contended
for by the appellant in this appeal.
[19]
This interpretation gives effect to the right that accrues to an
employer in terms of section 187(2)(b) to fairly
dismiss an employee
who has passed the agreed or normal retirement age. Significantly, it
is consistent with the purpose of section
187(2)(b) which is to allow
the employer to dismiss employees who have passed their retirement
age to create work opportunities
for younger members in society.
[20]
I disagree with the appellants’ submission that this
interpretation of section 187(2)(b) of the LRA is inconsistent
with
the right to fair labour practices in section 23 of the Constitution
because an employee’s right to a fair dismissal
is integral to
that right. There is a distinction in the value that informs the
content of fairness relative to employees who have
reached retirement
age and those who have not. While the dismissal of an employee, on
the grounds of age, prior to reaching retirement
age may have the
effect of impairing the right to human dignity of that employee, the
dismissal of an employee who has passed his
or her 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 by
contributing to provident or pension
funds.”
[12]
On the facts before me, and the jurisprudence by which I am bound, I
cannot find
that the termination of the employment
relationship in this case amounted to an automatically unfair
dismissal. The circumstances
around the termination reflect a lack of
professional work practice by the respondent in that leave was
granted for a period after
the applicant’s retirement date. The
fact that the applicant worked after her retirement date cannot
assist her claim. She
was paid for these days and has not sought to
claim her salary for the whole of February.
[13]
The respondent has argued that the applicant should be mulcted in
costs. On the normal principles,
I am of the view that law and
fairness dictate that no costs order should be made. I make the
following order:
Order
1.
The application is dismissed
2.
There is no order as to costs.
H.Rabkin-Naicker
Judge
of the Labour Court
Appearances
Applicant:
In
person
Respondent: State
Attorney Northern Cape