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[2019] ZALCJHB 340
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NTM obo Mothapo v Interwaste (Pty) Ltd (J791/16) [2019] ZALCJHB 340 (13 November 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
J791/16
In
the matter between:
NTM
OBO ISRAEL MOTHAPO
Applicant
and
INTERWASTE
(PTY)
LTD
Respondent
Heard
:
7-8 November 2019
Delivered
:
13 November 2019
Summary:
Dismissal based on age – presumed to be an unfair
discrimination unless – shown that the age is one agreed
upon
for retirement or a normal retirement one. Where an employer relies
on a normal retirement age, it must provide testimony
in support of
the norm for the category to prove on preponderance of probabilities
that the age at which an employee was made to
retire is the normal
one. Held: (1) The applicant has been automatically unfairly
dismissed. (2) The respondent is ordered to pay
to the applicant 24
months’ compensation. (3) The respondent is interdicted and
restrained. (4) The respondent to reimburse
the applicant.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
In this referral, there is no dispute that the applicant’s
employment
was terminated on 31 August 2015 on the basis that he had
reached the age of sixty years. It is also common cause that at the
time
of the dismissal, the applicant was aged 60. The applicant was
aggrieved by his dismissal and referred a dispute alleging
automatically
unfair dismissal. His contention being that the agreed
retirement age was the reaching of age 65. In justifying the
dismissal,
the respondent alleged that the applicant had reached the
normal retirement age, being 60 years, thus his dismissal is not
unfair.
Background
facts and evidence.
[2]
It is common cause that the applicant commenced employment with the
respondent on 19 May
2010 as a code 14 driver. On 16 June 2015, the
applicant turned 60. Having turned the age, he was asked to leave. He
offered resistance,
since in his knowledge, he was to retire at age
65. He was offered a one year fixed term contract which he rejected.
On 7 July
2015, the applicant received notification from the Human
Resources Director (Rajas Pillay) notifying him that his last day of
service
was 31 August 2015 as he had reached a compulsory retirement
age of 60 years. His trade union took issue with his “forced
retirement” and wrote a letter protesting the retirement. The
response to the letter is of critical importance, regard being
had to
the respondent’s defence. In parts, it read thus:
“
Mr Mothapo’s
retirement age is 60 as per the
normal practice in our business
…
While the benefit statement makes provision for retired at 65, it
does not (and cannot) enforce the company to retire its
employees at
that age –
it is a company prerogative
.
In this regard I wish to
draw your attention to the
Government Gazette No 27713, dated 1
July 2005
– also known as the Collective Provident Fund
Agreement… Here the definition of retirement age is clearly
provided
and in section 5 (j) and (k), clarity is provided on when 60
and when 65 would be considered the applicable age for retirement.”
[3]
The applicant’s testimony is briefly that as set out in a
benefit statement dated
28 February 2014, his retirement age was
recorded as being 30 June 2020, at which time he would have turned
65. In August 2015,
he had not reached age 65. The respondent on the
other hand tendered the testimony of Rajas Pillay. I interpose to
say, her evidence
was most confusing and inconsistent with the
written documents, in particular the above quoted letter, which she
contributed into
its creation. On the one hand she placed reliance on
the collective agreement and its interpretation by the officials of
the bargaining
council.
[4]
Also, she
testified about a “common practice” of retiring at the
age of 60. She further testified that those employees
who joined
prior to 1 June 2005, could, in terms of some collective agreement –
not produced in court –, retire at
age 65 and those who joined
after, like the applicant who joined in 2011, should retire at 60, as
set out in the collective agreement
of 2005. She could not testify as
to when did the “common practice” commence as she only
joined the respondent after
2005. She referred the Court to letters
of termination of other employees in support of the so-called “common
practice”.
She speculated that the information contained in the
benefit statement of the applicant might have been referring to the
historical
position. Later on and in re-examination, she vaguely
testified about drivers requiring PDPs (Public Driving Permits),
which could
not be issued to persons over the age of 60.
[1]
[5]
This matter
could have been concluded in one day, however, Mr Hutchinson,
appearing for the respondent, sought an adjournment to
the following
day in order to present a further witness for examination. Lo and
behold, on the following day no further witness
was presented
[2]
.
Argument
[6]
After presenting short heads, Mr Hutchinson argued that reliance is
placed on the norm as
opposed to an agreement. He rightfully conceded
that the alleged norm contradicts what the benefit statement records.
After pointing
out that the joining date is incorrectly reflected on
the benefit statement, he submitted that it is not the respondent’s
case that the veracity of the benefit statement is challenged. He
further submitted that in the event the Court finds in favour
of the
applicant, he should not be afforded maximum compensation because he
rejected a one year fixed term contract.
Evaluation
and discussion.
[7]
Presumably, dismissing an employee on the basis of age amounts to
unfair discrimination.
But, that presumption is rebuttable once the
provisions of section 187 (2) are met. The section provides thus:
“
(2)
Despite subsection (1) (f)-
(a) …
(b) a dismissal
based on age is fair if the employee
has reached the normal or
agreed retirement age
for persons employed in that capacity.”
[8]
In
casu
,
it is in dispute that age 60 is either agreed or a normal retirement
age. On application of the principle enshrined in
Schweitzer
v Waco Distributors (A division of Voltex (Pty) Ltd)
[3]
,
which is (a) was the employee’s dismissal based on age? (b) If
the answer to question (a) is in the affirmative, the next
question
is, did the employee have a normal or agreed retirement age for
persons employed in the capacity in which the employee
was employed?
If yes, what was it, (c) if the answer to the first part of the
question in (b) is in the affirmative, the next question
is; had the
employee reached such retirement age at the time of dismissal? If so,
then the dismissal of the applicant is fair,
this court must evaluate
the defence of the respondent.
[9]
As pointed
out, the respondent relies on the norm and not an agreement. The LAC
in
Rubin
Sportswear v SACTWU and Others
[4]
made it clear that an employer may not just wake up and say a
particular age is a norm. The Court specifically stated the
following:
“
A retirement age
that is not an agreed retirement age becomes a normal retirement age
when
employees have been retiring at that age over a certain long period –
so long that it can be said that the norm for employees
in that
workplace or for employees in a particular category is to retire at a
particular age.
An example would be where, without any formal agreement, employees in
a particular category have over 20 years been retiring at
a
particular age
without
fail
.
The period
must
be sufficiently long and the number of the employees in the
particular category who have retired at that age must be sufficiently
large to justify that it is a norm for employees in that category to
retire at that age.
If the period is not sufficiently long but the number is large, it
might still be that a norm has not been established. And if
the
period is very long but the number of employees in the particular
category who have retired at that age is not large enough,
it might
be difficult to prove that a norm has been established.”
[5]
[10]
In order to prove a norm, an employer is required to present evidence
that shows on a preponderance of probabilities
that such was the
norm. The respondent failed dismally in that regard. As a point of
departure, the fact that the applicant was
offered a one year fixed
term contract militates against the alleged norm. Had the applicant
accepted the offer, as a driver, he
would have worked beyond the
alleged normal retirement age. The number of employees that the
respondent sought to rely on as an
indication of the norm is woefully
insignificant. In others, like Marais, the termination notice was
issued on 19 June 2014, and
on the same date she was offered a one
year fixed term contract, which was extended until 15 July 2015.
[11]
It is apparent to me that this defence of 60 years being a norm is
nothing but an afterthought. It is clearly
apparent that the
respondent sought to rely on the provisions of the collective
agreement of 2005. In the statement of defence
the following is
apparent:
‘
2.4
In the terms of the Collective Provident Fund Agreement, it is
recorded that where there is consent
of an employer, an employee may
retire early at the age of 55 years of age and that the normal
retirement age is not earlier than
60 and not later than 65 years of
age.
2.5
In terms of the practice of the Respondent
and in accordance with
aforegoing provisions
, the retirement age applicable to the
Applicant was in fact 60 years of age.
In terms of the Government
Gazette 27713, an employee who joined the NBCRFLI Provident Fund
before 1 July 2005, could be retired
at the age of 60. This was
directly applicable to the Applicant.’
[12]
During her testimony, Pillay, relied on the definition clause as well
as clause 5 (2) (j) and (k) to advance
the respondent’s case.
Mr Hutchinson correctly conceded that the definition of a normal
retirement age states that the age
would be specified in an
employee’s conditions of service. He further conceded that the
definition clause specifies ranges
– 60 to 65 and does not
specify a particular age. The respondent has failed to provide the
Court with the applicant’s
employment conditions. Clause 5 (2)
(j) and (k) does not assist the respondent. It still requires proof
of the retirement age as
specified in the conditions of service.
Having realised these insurmountable difficulties a
volte face
was made to use the so-called “common practice”.
[13]
Accordingly, this Court is not satisfied that the respondent
succeeded in showing that 60 years is a normal
retirement age. On the
probabilities, account taken of the benefit statement, the agreed
retirement age between the applicant and
the respondent is age 65. It
being common cause that the applicant had not reached the agreed age
at the time of termination, his
dismissal is automatically unfair.
The
issue of the relief.
[14]
The
applicant did not wish to be reinstated. In terms of section 194 (3)
of the LRA, the compensation awarded to an employee whose
dismissal
is automatically unfair, must be just and equitable in all the
circumstances, but not more than the equivalent of 24
months’
remuneration. The respondent submitted that the applicant should not
be awarded maximum compensation for reasons
that he rejected a one
year fixed term offer.
It
is instructive to note what the LAC said in
ARB
Electrical Wholesalers (Pty) Ltd v Hibbert
.
[6]
It said:
‘
[22]
The compensation that an employee, who has been unfairly dismissed or
subjected to unfair labour practice,
may be awarded is not aimed at
making good the patrimonial loss that s/he suffered. The concept of
loss or patrimonial loss may
play a role to evince the impact of the
wrong upon the employee and thus assists towards the determination of
appropriate compensation,
but compensation under the LRA is a
statutory compensation and must not be confused with a claim for
damages under the common law,
or a claim for breach of contract or a
claim in delict.
Hence, there is no need
for an employee to prove any loss when seeking compensatory relief
under the LRA.
[23]
Compensatory relief in terms of the LRA is not strictly speaking a
payment for the loss of a
job or the unfair labour practice but in
fact a monetary relief for the injured feeling and humiliation that
the employee suffered
at the hands of the employer. Put differently,
it is a payment for the impairment of the employee’s dignity.
This monetary
relief is referred to as a
solatium
and it
constitutes a solace to provide satisfaction to an employee who’s
constitutionally protected right to fair labour
practice has been
violated. The
solatium
must be seen as monetary offering or
pacifier to satisfy the hurt feeling of the employee while at the
same time penalizing the
employer. It is not however a token amount
hence the need for it to be “just and equitable” and to
this end salary
is used as one of the tools to determine what is
“just and equitable”.
[24]
The
determination of the quantum of compensation is limited to
what is “just and equitable”.
The determination of
what is “just and equitable” compensation in terms of the
LRA is a difficult horse to ride…In
my view, and as I said
earlier, because compensation awarded constitutes
solatium
for
the humiliation that the employee has suffered at the hands of the
employer and not strictly a payment for a wrongful dismissal,
compensation awarded in unfair dismissal or unfair labour practice
matters
is more comparable to a delictual award for
non-patrimonial loss.
While a delictual action…for
non-patrimonial loss is fashioned as a claim for damages, it is no
more than a claim for a
solatium
because it is not dependent
upon patrimonial loss actually suffered by the claimant. Hence,
awards made under a delictual claim
for non-patrimonial loss may
serve as a guide in the assessment of just and equitable compensation
under the LRA. In
Minister of Justice & Constitutional
Development v Tshishonga
,
this court in an award of
solatium
referred to a delictual claim made under the
actio
iniuriarum
for guidance in what would constitute just and
equitable compensation for non-patrimonial loss in the context of an
unfair labour
practice
. It stated that since compensation serves
to rectify an attack on one’s dignity, the relevant factors in
determining the
quantum of compensation in these cases included but
not limited to:
“…
the
nature and seriousness of the iniuria, the circumstances in which the
infringement took place, the behaviour of the defendant
(especially
whether the motive was honourable or malicious),
the
extent of the plaintiff’s humiliation or distress
,
the abuse of the relationship between the parties, and the attitude
of the defendant after the iniuria had taken place…”
[25]
The above
dictum
should serve as an appropriate guideline
in determining what is just and equitable compensation that can be
awarded under s 194 (3) of the LRA.
[15]
This Court doubts that the offer made to the applicant was genuine. I
say so because it was conditional.
In the correspondence of 01
October 2015, the HR Business Partner recorded thus:
“
We shall in good
faith, extend another fixed term contract to Mr Mothapo, on the
condition that he is found medically fit for duty
, as with all
our employees.”
[16]
If the
applicant was found to be medically unfit, he would have not been
retained on a fixed term contract. In any event, the applicant
was
left with a solid five years before his retirement. It became clear
to me that the applicant was hugely humiliated by the turn
of events.
He had an incomplete house, which he had planned to complete before
retirement. He was distressed by this unlawful conduct
on the part of
the respondent. In the exercise of my discretion
[7]
,
it is just and equitable to award the applicant the maximum
compensation.
[17]
In terms of section 193(3) of the LRA, if a dismissal is
automatically unfair, the Labour Court in addition
may make any other
order that it considers appropriate in the circumstances. This
section empowers this Court to, even if not prayed
for, issue
interdictory relief. It is apparent from various correspondence that
the respondent has mentioned to its employees that
the age of 60 is a
compulsory retirement age. On the facts of this case, it has been
established that it is not a norm to retire
at 60. A greater
possibility exists that the respondent would continue with this
practice of suggesting that 60 years is a compulsory
retirement age.
Thus, it is appropriate to issue interdictory relief against such a
discriminatory practice.
[18]
For all the above reasons, the following order is made:
Order
1.
The applicant’s dismissal is automatically
unfair.
2.
The respondent is ordered to pay to the
applicant an amount of
R 202 840.56
(Two hundred and two thousand eight hundred and forty rand and
fifty-six cents) being an equivalent of 24 months’ remuneration
at the rate of
R 8 451.69
(Eight thousand four hundred and fifty-one rand and sixty-nine cents)
per month.
3.
The respondent is restrained and
interdicted from unfairly discriminating its employees on the basis
of age.
4.
The respondent must reimburse the applicant his
proven travelling expenses for the two days of court attendance
.
_______________________
G. N. Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant
: In Person.
For
the Respondent
: Advocate W Hutchinson.
Instructed
by
: Fluxmans Inc, Rosebank.
[1]
Interestingly, this version was never put to the applicant, nor was
it mentioned in the letter in response to the trade union’s
protest letter.
[2]
I must state, this appeared to me as a further day to earn an
appearance fee. No explanation was provided to the Court as to
what
became of the witness that the Court adjourned the matter early for.
This is unacceptable, taking into account the fact
that the matter
could have been concluded a day before.
[3]
[1999] 2 BLLR 188 (LC).
[4]
[2004] 10 BLLR 986 (LAC)
[5]
At para 22I-J page 993 to 994 at A-B+
[6]
[2015] 36 ILJ 2989 (LAC)
[7]
See
Dorey
v TSB Sugar
Case no JS287/2012 delivered on 03 May 2017 at paragraphs 42 –
45 of the judgment and
TSB
Sugar v Dorey
.
Case no JA86/17 dated 19 February 2019 at paragraphs 103 of the
judgment.