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[2017] ZALCJHB 461
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Lyall v City of Johannesburg (JS171/2014) [2017] ZALCJHB 461 (22 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Not
of interest to other judges
Case
no: JS171/2014
In
the matter between:
LYALL, MATHIESON MICHAEL
Applicant
And
THE CITY OF JOHANNESBURG
Respondent
Heard:
16, 17 and 20 November 2017
Delivered:
29 November 2017
Summary:
Retirement – whether the parties agreed on a retirement age.
Retirement – whether the
employer had a normal retirement age.
Dismissal – whether the employer dismissed the applicant
automatically unfairly because
of his age or whether the applicant
retired
JUDGMENT
COETZEE
AJ
Introduction
[1]
The parties parted ways after 36 years. After 36 years, a dispute
arose as to whether the respondent dismissed the applicant
because of
his age or whether the respondent retired the applicant after the
applicant had reached the respondent's normal retirement
age.
[2]
The applicant is a medical practitioner. He joined the respondent
during August 1977.
[3]
The respondent is the City of Johannesburg, a local authority
established in terms of legislation.
[4]
The respondent amongst others, provides medical services within its
jurisdiction. For that purpose, it conducts, amongst others,
clinics
for the benefit of its residents.
[5]
The applicant initially agreed to work part-time, that is 5 mornings
a week. When he joined the respondent, the respondent regarded
him as
a part-time employee. The respondent's retirement regime at the time
did not provide for part-time employees to join a retirement
fund.
This regime changed during 1984.
[6]
The applicant has two issues with the respondent. The first issue is
about an alleged unfair labour practice that allegedly
occurred
during 1989. The applicant alleges that the unfair labour practice
"continued" from 1989 to the date of termination
of his
employment on 31 December 2013.
[7]
The applicant has a second issue with the respondent. The applicant
claims that he was entitled to work until he reached the
age of 70.
[8]
The first basis for this claim is that he allegedly had an agreement
with the respondent to this effect. The agreement was not
in writing
but came about in the way described more fully below.
[9]
The second basis for this claim is that the respondent had no normal
retirement age, or at least one that applied to the applicant.
It is
his case that insofar as the respondent wished to rely upon a
retirement age referred to in any of the rules of its retirement
funds those were not binding upon the applicant. More specifically,
the rules of the fund of which the applicant was a member when
he
left the respondent's service on 31 December 2013 did not bind him
because he never in writing agreed to move to that fund from
the
Johannesburg Municipal Provident Fund (the Provident Fund). In
addition, the respondent compelled the applicant to join a retirement
fund against his will and thus the rules of the fund should not be
binding upon him insofar as it may impose or demonstrate a retirement
age. The termination of the applicant's services by the respondent,
according to the applicant, constitutes an automatically unfair
dismissal because it was based upon his age.
[10]
The respondent relies upon a normal retirement age that applied to
the applicant. The respondent denied the existence of any
agreement
between the parties regarding his retirement age.
[11]
The respondent on 20 September 2013 handed to the applicant a letter
to the effect that he had reached the retirement age and
his last day
of work would be 31 December 2013. The respondent thereby disputes
that it dismissed the applicant.
[12]
The applicant represented himself. He presented the facts of his case
in minute detail.
The
unfair labour practice
[13]
When the retirement benefits regime of the respondent changed during
1984 to provide for part-time employees to become eligible
to join
one of the retirement funds, the applicant indicated that he was not
interested in joining a retirement fund. He became
eligible to become
a member of one of the retirement funds. Membership was optional and
he elected not to join a fund.
[14]
During 1989, the regime changed further and the respondent made it
compulsory for its part-time employees to join one of the
retirement
funds. They could join either the JMPF or the Johannesburg Provident
Fund (the Provident Fund).
[15]
A representative of the respondent telephoned the applicant sometime
during 1989 to inform him of his obligation to join the
Johannesburg
Municipal Pension Fund (JMPF). The applicant was reluctant to do so.
When a representative from the respondent asked
the applicant to sign
an application form to join the JMPF he completed the form and wrote
on the form "Against my will".
He did so to record his
unwillingness to join the fund. One of his concerns was the amount of
the pension fund contribution he
had to pay to the JMPF.
[16]
The applicant contacted the respondent with regard to the
contribution to the JMPF. The respondent's representative then
offered
him an alternative. The alternative was to join the Provident
Fund. The monthly contribution to the Provident Fund was much less
than the contribution to the JMPF. The applicant completed the
necessary application form without again recording his unwillingness
to join a retirement fund.
[17]
At a later stage, the Provident Fund ceased to exist and the
Provident Fund's members received from the Provident Fund their
dues.
It is apparent from the rules of the newly established eJoburg
Retirement Fund that various retirement funds at various rates
of
contribution and benefits preceded the new fund. All of these funds
culminated in one retirement fund and all employees were
obliged to
become members of the eJoburg
Retirement
Fund.
[18]
The rules of the eJoburg Retirement Fund were not in dispute. The
rules provide that any eligible employee becomes a member
of the
eJoburg Retirement Fund if it is a condition of employment of the
employer who is an employer member of the eJoburg Retirement
Fund to
belong to a retirement fund.
[19]
The applicant thus became a member of the eJoburg Retirement Fund.
There is not much that turns on this. The applicant held
the view
that he unfairly became a member of the eJoburg Retirement Fund
because he never signed an application to join this fund.
He
submitted that in the absence of his signature he could not have
become a member of this fund.
The
normal retirement age
[20]
The applicant turned 65 on 13 July 2012. The respondent's case was
that the respondent had a retirement policy. In terms of
the policy,
the normal retirement age for its employees is 65. The respondent
called a witness from the HR department to testify
thereto. She
testified that the respondent had a retirement policy in place and
that the retirement age applied to the applicant.
The applicant
challenged the witness on the lack of availability of the policy but
at no stage in cross-examination challenged
her evidence that the
policy existed and applied to the applicant.
[21]
The applicant in his statement of case also did not dispute the
existence of such a policy. He pleaded that by agreement he
was
entitled to work until the age of 70. He then further pleaded as
follows:
"Alternatively, if and where
there is no agreement between the parties as to the retirement age of
the Applicant and/or no
norm for retirement of persons in the
Applicant's capacity or position can be established it should be
found that there was an
unilateral act by the Respondent and that
same amounts to an automatically unfair dismissal …"
[22]
The parties recorded in the pre-trial minute that it was in dispute
as to whether there was a norm pertaining to the position
held by the
applicant in respect of the age on which he was to retire at.
[23]
It is common cause that the applicant worked beyond the age of 65.
After July 2012 when he had just turned 65 a copy of the
pension fund
rules was sent to him. Under the heading "Benefits" the
rules provided that a Member of the Retirement Fund
will become
entitled to the benefits at his or her normal retirement age, or at
an earlier date agreed with his or her employer
but not before he or
she reaches the age of 55 or at a later date agreed with his or her
employer but not after he or she reaches
the age of 70.
[24]
The respondent's testimony was that an employee who reaches
retirement age could approach his or her line manager with a request
to work past the normal retirement age of 65. Such a request must be
made in writing and submitted to the line manager. The line
manager
would then submit the written request to the HR department. If such a
request is approved, the employee who made the request
is advised in
writing of the approval. The HR department would also send a copy of
the written approval to the retirement fund
so that the fund would
know not to regard the person as having retired.
[25]
It is common cause that the applicant did not avail himself of such a
procedure. The respondent's HR department by email dated
28 August
2013 set in motion a procedure to meet with the applicant about his
retirement. The applicant was not willing to meet
with a
representative from HR on a Wednesday for which the meeting was
arranged. The applicant did not normally work on a Wednesday
and for
that reason he refused to attend the meeting. He did not attempt to
reschedule the meeting. Such a meeting would have presented
to the
applicant an opportunity to discuss retirement details and procedures
and to be advised of what options were available to
him.
Unfortunately, he did not take up the opportunity.
[26]
In the period between July 2012 and September 2013, the applicant
attended a meeting initially set for 12 October 2012 but
held
somewhat later with regard to operational issues. The applicant
testified that during the meeting he made a statement that
he had the
right to work until age 70 on the same conditions of service. No one
at the meeting refuted the statement or commented
on the statement.
His statement was met with silence. The witnesses for the respondent
denied that he made such a statement.
[27]
The applicant testified that prior to this meeting he had phoned his
Union who had informed him that he had the right to work
until age
70. The union representative did not inform him why he was entitled
to work to age 70. The representative mentioned
that he had
been "to the meeting" and he knew it was the case. He
raised this matter at the meeting initially set for
12 October 2012
on the strength of what his union representative had told him.
[28]
He attended further meetings with his line manager and others during
August 2013 and again on 13 September 2013. During the
meeting of 13
September 2013, his line manager discussed with him possible changes
to the geographical area where he was working.
At that time, by
agreement, he was working 3 mornings in any week in agreed areas.
[29]
During the period from July 2012 to September 2013, the applicant at
a meeting undertook to attend conferences as part of his
duties. His
line manager at the meeting asked him whether he would be prepared to
do so. He was willing to attend conferences.
The first conference he
attended was on 19 and 20 August 2013. He only attended on 20 August
2013, as 19 August 2013 was not one
of his working days. He did not
want to create the impression that he was prepared to work on a day
that was not agreed upon. He
also refused to sign the registration
form to attend the conference. He believed that if he were to sign
the registration form
he would agree to a change to his conditions of
employment and thereafter had to work on Monday mornings which was
not part of
his agreement.
[30]
The fact that he was asked to attend a conference created with him
the impression that the respondent had agreed to employ
him past his
retirement age. This impression was reinforced by the other
discussions during this period about changing the geographical
area
that he had to serve.
[31]
The HR department prepared a letter to notify the applicant of the
date of his retirement. The letter is dated 19 September
2013. The
letter was handed to the applicant on 20 September 2013. The letter
reads as follows:
"NOTIFICATION OF RETIREMENT
It has come to our attendance (sic)
that you were due for retirement at the 13 July 2013; the last
working day will be 31 December
2013.
We would require you to arrange a
meeting with Eugene Du Preez of Human Resources on 011 407-7136 by
the 30 November 2013 to complete
all relevant documents pertaining to
your Retirement Funds.
…
Please do not hesitate to contact
Human Resources for further information."
Analysis
and submissions
The
alleged unfair labour practice
[32]
The applicant submitted that the respondent unfairly compelled him to
become a member of the Provident Fund and subsequently
without his
signature transferred him to the eJoburg Retirement Fund. The
respondent's conduct to compel him constituted, in his
submission, an
unfair labour practice with regard to benefits. In his evidence he
also stated that it was an unfair labour practice
for the respondent
at first only to inform him that he had to join the JMPF instead of
informing him of both the JMPF and the Retirement
Fund. He rightly
did not pursue this in argument as he never pleaded such a case.
[33]
In his evidence, he introduced a further aspect and that is that if
he had not become a member of the Provident Fund he would
have
qualified for a gratuity equal to one month's remuneration for each
year of completed service. The applicant never pleaded
this as part
of his case. He limited his unfair labour practice to the fact that
he was compelled to join the Provident Fund.
[34]
The respondent submitted that
the applicant in the first place never referred a dispute about an
alleged unfair labour practice
to the Commission for Conciliation
Mediation and Arbitration (the CCMA). Secondly that in 1989 the
Labour Relations Act
[1]
,
had not been promulgated. As the applicant had failed to adhere to
any prescribed timelines, he would not be entitled 24 years
after the
alleged unfair labour practice to refer the matter to the CCMA or the
Labour Court. The respondent further submitted
that the applicant
recorded his unwillingness to join the JMPF but never recorded such
an objection when he joined the Provident
Fund. The respondent made
the further submission that the applicant for 24 years never acted
upon the alleged unfair labour practice.
He did not file a grievance
or referred the matter to the CCMA or the then Industrial Court.
[35]
In return, the applicant argued that the alleged unfair labour
practice continued until 31 December 2013 when he left the employ
of
the respondent. He was afraid to file a grievance as he feared
victimisation from the respondent.
[36]
The applicant clearly pleaded an alleged unfair labour practice that
occurred in 1989 and that the unfair labour practice was
that the
respondent compelled him to belong to a retirement fund. That was a
single incident and it was not an ongoing event. The
applicant failed
to establish an unfair labour practice under the LRA.
[37]
If there were an unfair labour practice, he did not adhere to the
then prescribed time limits. He has not shown that he could
still
lawfully pursue such an alleged unfair labour practice at the time
when he filed his statement of case.
[38]
The applicant did not mention in his referral of a dispute any
alleged unfair labour practice. The commissioner after
failed
conciliation issued a certificate. The certificate records that one
of the disputes that remained unresolved, related to
an alleged
unfair labour practice. The fact that in the certificate mention is
made of an alleged unfair labour practice does not
mean that the
applicant had referred such a dispute to the CCMA when no mention is
made in the referral of such a dispute. Nothing
turns on this as I
have already found that the applicant failed to adhere to the
prescribed time limits in terms of the legislation
preceding the LRA,
and if applicable, the prescribed time limit in the LRA.
[39]
The applicant's claim based upon an alleged unfair labour practice is
dismissed.
The
normal retirement age
[40]
The respondent through evidence established that at the time of the
retirement of the applicant the respondent had a normal
retirement
age in place.
[41]
Instead of challenging the evidence that there was a normal
retirement age policy in place, the applicant challenged the evidence
that at the time of his retirement there was no proper system in
place alerting the HR department to the retirement dates of the
employees. The evidence was that usually the employees would approach
the HR department when they became due to retire. During
2013 the HR
Department cleaned up the process and discovered that a number of
employees had continued to work past their retirement
dates. The
applicant was one of them. They were all then informed that they were
to retire. This included the applicant. The applicant
maintained that
the respondent at all times was aware of his age and the respondent's
failure to retire him when he turned 65 during
July 2012 (but only
informed him of his retirement during September 2013) means that the
respondent agreed that he could retire
at age 70.
[42]
The respondent's witness from HR did not concede that there was a
proper reporting system in place to alert HR of the retirement
dates
of the respondent's employees.
[43]
The applicant attempted to establish an agreement between the
applicant and respondent in terms whereof he was entitled to
work
until age 70. By implication his case was that there was in place an
agreed retirement age that applied to him and that such
agreement
excluded the normal retirement age policy of the respondent.
[44]
The applicant was unable to testify as to the date when the parties
entered into this agreement. He relied upon events that
"built
upon themselves" and culminated in an "agreement". The
first fact is that he was allowed to work past
age 65. The second
fact is that his line manager created the impression with the
applicant that the applicant would work until
age 70. The line
manager by discussing with him after he had turned 65 his
geographical area of work and asking him whether he
would attend
conferences constituted conduct that created such an impression with
him. Finally, he relied upon what he had said
in the meeting about
his right to work until age 70 without that statement being disputed.
[45]
The one pillar upon which the alleged agreement rests is the
communication from the union to the applicant. The applicant was
unable to provide a substantive basis for the communication. The
communication from the union representative does not provide any
proof of an agreement as alleged by the applicant. Fact is that he
had no such a notion until he had telephoned the union to ask
about
his retirement age. The union representative informed him that he was
entitled to work until age 70 on the same terms and
conditions of
employment. This he conveyed to his line manager and others in the
meeting. What the applicant conveyed to the meeting
was nothing more
than the contents of a communication from his union representative.
This does not constitute the basis for an
agreement.
[46]
I am not persuaded that there was a meeting of minds at the meeting
in this regard. The line manager in the first instance
disputed that
the applicant ever made the statement that he was entitled to work
until age 70. On the assumption that the applicant
made such a
statement the applicant lacked any factual or legal basis for the
statement. He conveyed hearsay advice from a union
representative. He
could not have had any factual or legal basis, other than what the
union representative told him, of the alleged
right to work until age
70. The line manager certainly had no intention to enter into an
agreement with the applicant the work
until the age of 70. His
silence in the face of such a remark from the applicant certainly
cannot constitute conduct that created
an agreement.
[47]
The submission of the applicant also lacks rationality. There is no
basis to create a contract in the meeting as alleged by
the applicant
when the applicant was merely conveying to the meeting his already
existing right to work until age 70. What he was
telling the meeting,
on his version, was that he had already had an agreement to work
until 70. That is what the union representative
told him. It is not
rational to rely upon an existing agreement and on the conclusion of
a new agreement in conveying to the other
side the existence of an
existing agreement.
[48]
The applicant has the onus to prove the existence of an agreement to
work until age 70. He has failed to discharge such an
onus. In the
absence of an agreed retirement age the evidence of the respondent
stands that a normal retirement age was in place
at the time when the
respondent retired the applicant.
[49]
The applicant, representing himself, understandably raised ancillary
issues that did not contribute to his case.
[50]
In argument, he submitted that it was unfair for the respondent to
have a retirement policy that applied to all employees.
He submitted
that the respondent had to consider the individual circumstances of
someone in the position of the applicant before
applying the normal
retirement age. The submission is not based upon any part of the
applicant's case as pleaded. Never pleaded
that if there was a
retirement policy that such a policy was unfair. The applicant also
had an opportunity to approach his line
manager with a request to
work for a longer period. He did not avail himself of this
opportunity.
[51]
The applicant submitted that the respondent in fact had in place a
reporting system to alert the HR department of, amongst
others, his
retirement age. According to him, there must have been some secret
agreement or arrangement between the HR department
and his line
manager to let him work past age 65 and then to, at will, retire him.
The applicant was unable to direct the attention
of this Court to any
evidence about the reporting system. The witness from HR testified
that there was no such a proper reporting
system in place at the
time.
[52]
The applicant made the
submission that the respondent was obliged to call an expert witness
to establish the normal retirement age
of the respondent. In the
absence of expert evidence, the respondent failed to establish a
normal retirement age. The submission
fails in the first instance
because the applicant has not challenged the respondent's evidence
that such a policy existed. For
this submission, he relied upon the
judgement in
Deon Bos vs Eon
Consulting
.
[2]
[53]
This authority does not support
the applicant's submission. In the
Deon
Bos
matter
[3]
,
the Court dealt with how an employer could establish a normal
retirement age with reference to the industry to which the employer
belongs. In such a case, it is preferable that an expert testified:
"[41]
A retirement age that accords with the norm, as contemplated by
Section 187(2) (b), can be established both internally
in an
employer, or externally in a particular industry if there is no
norm in the employer itself. An example of
the application
of an industry norm to establish a normal retirement age can be found
in
Botha v Du
Toit Vrey and Partners CC
where
the Court dealt with and accepted the retirement age set in the
municipal sector for the particular profession of assistant
appraiser, which was 65 years of age, even in the absence of a norm
in the employer.
[41] When
relying on an industry norm, it is critical that the employer
presents credible evidence, preferably by an expert, as
to what
would constitute the particular industry standard or norm, in
order to establish the retirement age in that
industry. A
comparison to the retirement age applicable in other
directly comparable employers in the industry would also be
a consideration. If the industry is organized or regulated,
then the provisions of industry collective agreements or
other
form of published regulation in that industry would be
an important consideration.
[42] Where
it comes to the norm in an employer, this must equally be
established by evidence. This evidence would include
evidence about
a practice in the employer, when other employees may have
retired, policy provisions or regulation,
or pension /
provident funds rules or annuity provisions. Another
consideration would be how the employer had treated
other employees
who attained the same age in the past. The easiest way
of establishing a retirement age norm in
an employer would of course
be by way of a retirement policy.
[43] It
is not required that employees have to be consulted on, or that
they have to agree to, the retirement age
as stipulated by
the employer in the retirement policy. In principle,
an employer is entitled to unilaterally fix,
and then
implement, a normal retirement age. In
Bedderson
v Sparrow Schools Education Trust
the
Court said the following, with specific reference to the
introduction of a retirement policy:
‘
In
my ruling I concurred with the view that employers are entitled to
introduce policies and procedures regulating elements of the
relationship between themselves and their employees. ….’"
[54]
What the judgment in
Deon
Bos
[4]
says is that the employer must present credible evidence of the
normal retirement age. The judgment does not say that when the
employer internally determines a normal retirement age it must
present expert evidence to prove the normal retirement age.
[55]
The judgment further emphasises that the employer may adopt a normal
retirement age without the cooperation of the employees
provided it
is not in conflict with an agreement between the employer and the
employee.
[56]
The submission of the applicant that the respondent should have
called an expert to establish the normal retirement age is
without
substance.
[57]
The applicant submitted that it was unfair to issue a letter of
retirement to him without any prior consultation. He submitted
that
it could not be that an employer could act unilaterally in
implementing an employee's retirement. According to him, retirement
is not something that could be left to the employer only.
[58]
The applicant has not pleaded any such case. I have already indicated
that an employer is at liberty unilaterally to introduce
a retirement
age and to act in accordance with the retirement age. Of course, the
employer cannot make such a retirement age retrospective
or apply it
in breach of an agreement with an employee. The applicant has not
shown any agreement to the contrary. There is no
substance in this
submission.
[59]
The applicant made it abundantly clear that he was not pursuing a
claim based upon victimisation. The manner in which he pleaded
his
case created the impression that he might have suggested that the
respondent victimised him for not agreeing to a change to
the
geographical area that he had to serve. The applicant conceded that
the respondent at no stage required of him to render the
services in
a geographical area that he had not agreed to. On one occasion, he in
fact attended to render services in such an area
but he did so
willingly.
[60]
The applicant has not discharged the onus to prove an agreement with
regard to his retirement age. In the absence of an agreement,
the
normal retirement age of the respondent applied to him when the
respondent retired him on 31 December 2013.
[61]
The applicant's claim that the respondent automatically unfairly
dismissed him because of his age is dismissed. I have already
indicated that his claim that he suffered an unfair labour practice
has met the same fate.
[62]
The respondent has not asked for a cost order. The applicant has not
incurred legal costs. He represented himself in person.
[63]
I make the following order:
Order
1.
The application is dismissed.
2.
There is no order as to costs.
____________________
F.
Coetzee
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant:
In person
For
the Respondent:
Advocate L Mkhize with Advocate M Mafisa
Instructed
by:
Mncedisi Ndlovu & Sedumedi Inc
[1]
Act 66 of 1995 as amended.
[2]
Unreported JS948/2014 dated 12 August 2016
[3]
Supra.
[4]
Supra