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[2025] ZALCCT 31
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Viljoen v Peninsula Plumbing and Engineering Wroks (Pty) Ltd (C383/2021) [2025] ZALCCT 31 (15 May 2025)
FLYNOTES:
LABOUR – Discrimination –
Age
–
Alleged
automatically unfair dismissal – Retirement policy
distinguished retirement age between site workers and
administrative staff – Pension scheme rules and retirement
policy supported distinction between retirement ages for different
roles – Employers may enforce retirement ages without
violating constitutional fair labour practices –
Differential
treatment justified – Dismissal not
automatically unfair –
Labour Relations Act 66 of 1995
,
ss
187(1)(f)
and
187
(2)(b).
THE LABOUR COURT OF
SOUTH AFRICA
AT CAPE TOWN
Of interest to other
judges
Case
no: C 383/2021
In
the matter between:
PATRICK
VILJOEN
Plaintiff
and
PENINSULA PLUMBING
AND
Defendant
ENGINEERING WROKS
(PTY) LTD
Heard
:
23-24
July and 9 August 2024
Delivered
:
15 May 2025
Summary:
(S 187(1)(f)
of the LRA – Alleged
automatically unfair dismissal base on age- claim that all employees
were due to retire at 60 and that
it was automatically unfair to
retire the applicant at 60 when others were permitted to work beyond
that age – employer had
a two-tier retirement age system
applicable to different categories of employee –
S 187(2)(b)
of
the LRA applicable – No automatically unfair dismissal)
JUDGMENT
LAGRANGE, J
Nature
of the application
[1]
The plaintiff, Mr P Viljoen (‘Viljoen’), worked as an
artisan plumber for the respondent firm (‘Peninsula’)
until his service was terminated by the firm on 12 October 2020. He
started working for the firm on 4 August 2008. Viljoen claims
that
the firm terminated his services on account of his age and that it
was automatically unfair in terms of s 187(1)(f) of the
Labour
Relations Act, 66 of 1995 (‘the LRA’) read with section 6
of the Employment Equity Act 55 of 1998 (‘the
EEA’). His
claim is that it was automatically unfair that he was required to
retire at age 60 whereas some other employees
were allowed to
continue working beyond that age.
[2]
Peninsula disputes his claim. According to the firm, Viljoen’s
service was terminated on him reaching the normal
retirement age of
60 which applied to employees engaged in his occupational category in
terms of the Building Industry Bargaining
Council agreement and in
terms of PPEW’s own policy. It is common cause that Viljoen
turned 60 years old in October 2020.
[3]
Viljoen had also contended, in the alternative, that he had been
automatically unfairly dismissed on account of being
a shop-steward.
When the matter was argued an alternative claim of unfair dismissal
under s188 of the LRA was advanced, but that
was not a case which had
been pleaded, so the court could not consider it.
Factual background
[4]
Viljoen was advised on 28 September 2020 that he was due to retire on
12 October 2020 and that his retirement age of sixty
was “
as
per the Building Industry Bargaining Council and that of PPEW”
.
On 8 October he lodged a formal grievance alleging he was being
unfairly denied further employment after his retirement.
He
identified two other employees, Mr M Ragmaan (‘Ragmaan’)
and Mr C Mthiya (‘Mthiya’), whom he claimed
were
respectively four and six years older than him but were still working
beyond the age of 60. He also questioned if he was being
denied the
right to work after 60 because he was a shopsteward who had to fight
the company for workers’ rights.
[5]
Mr S Marten (‘Marten”), the firm’s human resource
manager, responded the same day, stating that his
grievance would not
be entertained. Firstly, Ragmaan held the position of foreman and had
“a pertinent role whilst working
with the supervisor Waja on
the projects needed”. Secondly, Mthiya was not a site employee
but was employed at HQ Operations
where a retirement age of 65 years
applied. His allegation of victimisation as a shopsteward was
dismissed as being far-fetched.
[6]
Viljoen pointed out that Ragmaan was an artisan plumber like himself
doing similar work. He was a scheduled employee like
all others on
site. If he was a supervisor, he would be classified as an
unscheduled employee. Nonetheless, Viljoen agreed
that Mthiya
occupied a foreman’s position at the foreshore site he was
employed on at the time of Viljoen’s retirement
and was known
as a “62 employee”. This was reference to employees
specifically entrusted with health and safety functions
at the
workplace under the Occupational Health and Safety Act, 85 of 1993
(‘OHSA’) . He claimed to have been unaware
that there
were two retirement policies governing different classes of employee.
He felt PPEW’s conduct in terminating his
service at age 60
amounted to a form of discrimination based on age.
[7]
Viljoen also said he spoke up for workers when the employer did
things it was not supposed to. An example was of this
was in 2017
when he claimed the firm changed conditions of employment which
resulted in workers being paid only 9 days fortnightly
instead of 10.
He also took up the issue of underpayments for family responsibility
leave. Marten queried why he was questioning
the company’s
actions when he knew it could not victimise employees. He became a
NUM shopsteward in 2018. Under cross-examination
he conceded that
there were four unions operating at the firm, which was used to
dealing with them. When he was challenged why
there was no
correspondence from NUM complaining about him being victimised and
that the issue was only raised by him when he was
retired, he said
NUM was not interested in assisting him and that, while victimisation
was part of his complaint, the main issue
was his complaint about age
discrimination.
[8]
He testified that he was employed permanently in 2008 after he had
worked for more than three months on probation. At
that stage he had
no written contract, let alone one he allegedly signed in Marten’s
presence, as the latter testified. It
was only in 2018 he received a
copy of his contract, when he needed one for his bank and his
attorney had requested it from PPEW.
He claimed he had never signed
the contract himself. When Viljoen requested the copy of his
contract, Marten said he would have
to draw one up as there was no
copy of his own written contract. Consequently, the copy obtained at
that time was unsigned.
[9]
Clause 4.6 of the unsigned contract he received from Marten stated
that “
The employment shall terminate automatically on the
employee’s 60
th
birthday.”
In
an annexure to the employment contract in which details nature and
expected duration of the work were stipulated, it also
had a
provision which read “
1. With reference to paragraph 4 of
the Permanent Contract of Employment, it is recorded that it is the
company’s retirement
policy to retire employees, both permanent
and temporary on attaining the age of 60 years old”
.
Viljoen read this to mean that all employees had to retire at age 60.
[10]
In the discovery process, PPEW produced, what it claimed was a
scanned copy of a signed annexure to Viljoen’s contract
of
employment and Form 5 of
Employment Equity Act 55 of 1998
. Both
documents were dated 19 June 2017 and bore signatures which Viljoen
conceded “looked like” his signature. One
of the
annexures was a standard annexure to PPEW’s employment
contracts and contained a stipulation that the retirement age
was 60
for both temporary and permanent employees.
[11]
Much was made of the fact that these two signed documents were not
produced when Viljoen had previously asked for a copy
of his contract
in 2018 and PPEW but the firm could not provide any signed documents,
yet later these signed documents, purportedly
signed in 2017, had
come to light afterwards. Marten testified that when Viljoen’s
attorney had requested a copy of the contract,
he had been unaware of
the existence of these two backed up scanned documents bearing
Viljoen’s signature, which had been
discovered as attachments
to an email. He maintained that he had in fact given the contract and
the two annexures to Viljoen on
site for his signature, but it was
possible he had not returned the signed contract itself because he
wanted more time to read
it. The firm also produced a copy of a
contract of another artisan plumber concluded in 2019, which
stipulated that his employment
would terminate automatically on his
60
th
birthday. The contract had similar annexures to
the ones apparently bearing Viljoen’s signature. In any event,
the
annexure confirming the retirement age of 6o is one of the
documents, that Viljoen appeared to sign.
[12]
After the court had dismissed PPEW’s application for absolution
from the instance at the close of Viljoen’s
case, but before
the employer began to lead evidence in support of its case, it
produced a copy of its Retirement policy. The introduction
to the
policy stated: “
The company has adopted the normal
retirement age of 65 years for office administration staff,
supervisory and foreman levels and
that all other site worker
employees will have a retirement age of 60 years as per this policy
and in-line with the Building Industry
Bargaining Council (BIBC)
rules of the relevant retirement funds.
” There was a
dispute about the late introduction of the document, but it was
admitted because it had been part of PPEW’s
pleaded case that
Mthiya worked in the firm’s head office and was subject to a
retirement age of 65 applicable to persons
in his category of work.
Moreover, in his evidence in chief, Viljoen had acknowledged the
existence of a two-tier retirement age
at the firm for different
categories of staff but argued that such a differential policy was
inherently unfair.
[13]
When Viljoen was shown the provisions of the Building Industry
Pension Scheme (Western Province), which state that the
normal
retirement age is 60, he claimed it was the first time he had seen
that. Nonetheless, he did not dispute this evidence.
[14]
It was put to Viljoen under cross-examination that the scope of the
bargaining council main collective agreement did
not cover “
clerical
employees, supervisory staff and administrative staff, unless hourly
paid”
and that is was why it did not cover Mthiya who was
designated as a despatch supervisor and was working at head office.
Viljoen
responded that this did not make it non-discriminatory,
and he contended that it conflicted with PPWE’s own company
policy
which made no distinction between categories of employee,
based on the text of the employment contract, which only stipulated
one
retirement age of 60.
[15]
Marten testified that Mthiya was a salaried employee but hourly rates
of pay were entered on all certificate of service
forms issued under
s 42 of the Basic Conditions of Employment Act even if they were paid
a monthly salary, hence it did not mean
that Mthiya or Ragmaan were
hourly paid.
[16]
Viljoen reluctantly conceded that Ragmaan was in a more senior
position as a foreman on the foreshore site where he worked,
even
though he disputed that the project had any ‘special’
status. In Ragmaan’s certificate of service
his job
designation was “Foreman-Artisan”. It was also not
disputed that the foreman position came with certain health
and
safety responsibilities.
[17]
It is true that a copy of Viljoen’s full contract of employment
was not produced. However, a copy of a signed
contract of
another plumbing artisan stipulated a retirement age of 60. That too
had an annexure stipulating the retirement age
of 60, which was
identical in form to the one that Viljoen appeared to have signed. At
first glance, it might seem odd that PPEW
only came up with the EEA
form and Annnexure which appeared to bear Viljoen’s signature
after it previously failed to locate
a signed copy of his contract,
but the explanation that the two other documents were only located
because they had been attached
to an email was not implausible. The
fact that the forms had been required for EEA purposes, means there
was a needfor the firm
to have obtained his signature at the time.
Moreover, even though Viljoen denied signing the two documents, he
conceded that the
signatures looked like his. The probabilities
favour the view that he had in fact signed the two annexures, one of
which confirmed
a contractual retirement age of 60.
[18]
Viljoen also could not dispute that six other employees working in
the same category as himself were also retired at
age 60. He
further agreed that Ragmaan retired at the end of the Foreshore
project but argued that he was already older than
62 at that stage,
because he recalled Ragmaan’s sixtieth birthday being
celebrated in 2016. Viljoen’s recollection
is corroborated by
Ragmaan’s identity number appearing on his certificate of
service which shows he would have been 64 by
the time he retired on
10 August 2020. Mthiya’s certificate of service showed he
retired in December 2019, having turned
65 in January that year.
Viljoen’s issue with the retirement of both these employees was
that they ought to have been retired
at age 60 which he maintained
was the retirement age applicable to all employees.
[19]
Marten explained that the reason for different retirement ages at
PPEW was the nature of the work done. The employees
falling under the
bargaining council agreement were generally engaged in more
physically demanding work than the supervisory and
administrative
personnel, hence the different retirement ages of 60 and 65,
respectively. Clause 1 of the Retirement policy did
provide for
distinct retirement ages for two categories of employee and Mthiya
and Ragmaan fell into the 65 year age category and
Viljoen into the
60 year age group when it came to retirement dates.
Evaluation
[20]
On balance, most of the material evidence points to Viljoen being
subject to a retirement age of 60, even if the full
signed version of
his own contract could not be produced. The evidence supporting this
is: the rules of the Building Industry pension
scheme; the annexure
which Viljoen most probably did sign, which stipulate a retirement
age of 60; clause 1 of the PPEW retirement
policy; the undisputed
fact that a number of his peers were also retired when they reached
the age of 60, and the retirement provision
of the contract of
another permanent artisan plumber. Moreover, even though Viljoen was
reluctant to concede that the normal retirement
age in the industry
and the firm was 60, his claim was implicitly premised on the
inconsistent application of a rule about
having to leave
employment at age 60.
[21]
Mthiya and Ragmaan were not in the same occupational category as
Viljoen and the six other artisans. The evidence was
that Mtshiya was
not employed on site but held a position as a dispatch supervisor
could not be disputed. In the circumstances,
Mthiyane was clearly in
a category of employees which was not subject to a normal retirement
at 60 but whose normal retirement
age was 65. That said, he was
not retired at 65, but was kept on for another ten months after
reaching 65.
[22]
As mentioned, Viljoen also conceded that, even if Ragmaan was also an
artisan, he occupied a foreman’s position,
which was
corroborated by his certificate of service. He did not dispute that
the role Ragmaan performed entailed OHSA responsibilities
which were
not part of the artisan’s ordinary functions. Viljoen
claimed he too could have been appointed as a foreman,
but he was
not. PPEW had explained it had kept Ragmaan in employment because of
the work he was performing as a foreman on a particular
foreshore
site. In any event supervisory staff had a retirement age of 65. As
it happened, Ragmaan retired earlier when he was
64.
[23]
There might well be a legitimate argument to be made that having
different retirement ages for different categories of
staff is
unfairly discriminatory, but s 187(2)(b) of the Labour Relations Act,
66 of 1995 (‘the LRA’) has specifically
stipulated that
such differentiation acceptable, in stating :
“
(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
.”
[24]
In passing, it is
noteworthy that ILO Convention 158 adopted in 1982, does not
specifically identify age as an illegitimate ground
of discrimination
per se,
though
it does not regard the illegitimate reasons it does identify as
forming a closed list
[1]
.
ILO
Recommendation 162 concerning “older workers”
[2]
urges ILO member states not to discriminate against such workers
inter
alia
in
relation to employment security, subject to national law and practice
relating to termination of employment
[3]
.
It recommends that mandatory retirement provisions should be examined
in the light of measures to ensure that retirement should
be
voluntary and that eligibility for old age pensions should be
flexible
[4]
. By enacting s
187(1)(f) of the LRA, the legislature accepted the general principle
that discrimination based on age is prohibited
but permitted an
exception under s 187(2)(b) when the retirement takes place at a
retirement age established by agreement or practice.
[25]
Whatever the criticism of
mandatory retirement ages might be,
in
Motor Industry Staff Association & another v Great South Autobody
CC t/a Great South Panelbeaters
[5]
the Labour Appeal Court affirmed the right of employers to retire
employees who have reached or passed a normal or agreed retirement
age under s 187(2)(b), and rejected an argument that the provision is
unconstitutional:
“
[18] …
Properly construed, s 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
reached the normal or agreed retirement age. In the same vein, s
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 s 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 s 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 s 187(2)(b)
of the LRA is inconsistent with the
right to fair labour practices in
s 23 of the Constitution 8 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.
[21]
It is not unfair,
in these circumstances, for the legislature to expect employees with
agreed or normal retirement ages to work
until reaching retirement
age or for as long as the employer can accommodate them after
reaching that age
. Construing s 187(2)(b) in a manner that allows
an employer to create opportunities for a younger and more innovative
workforce,
especially in a country such as ours with unprecedented
unemployment levels, is not inconsistent with the spirit, purport, or
objects
of the right to fair labour practices in s 23 of the
Constitution.”
(emphasis added)
Even
though the LAC was dealing with a case where an employer retired an
employee who had
passed
their retirement age, the Court
clearly emphasised that s 187(2)(b) conferred a right on an employer
to implement a mandatory retirement
age. That provision also
expressly envisages that different retirement ages for different
categories of employee are permitted,
which is the principal focus of
Viljoen’s attack.
[26]
Subsequently, the
Constitutional Court has considered the fairness of post-retirement
age dismissals, in a judgement in which the
LAC decision in
Grand
South Autobody
was
one of the cases on appeal.
[6]
The essential question the court was seized with in both the matters
before it was whether an employer was entitled to terminate
an
employee’s service on grounds of retirement, and thereby be
protected under s 187(2)(b) from a claim under s 187(1)(f),
if the
employee continued working beyond the normal or agreed retirement
date. Regrettably, there was a split decision but the
majority of the
court, for different reasons, dismissed the appeal against the LAC
decision, confirming that an employer may fairly
retire an employee
on or after their normal or agreed retirement date
[7]
.
It was not part of the reasoning of any of the judgements in the
constitutional court that a mandatory retirement cannot be imposed.
[27]
In this matter, it is clear there is a two-tier mandatory retirement
system in place and Viljoen’s direct peers
were all retired
when they reached the age of 60, like himself. I accept that,
it is possible that he could potentially have
been appointed as a
foreman on a site, like Ragmaan, but he was not, and his job
designation remained that of an artisan at the
time he was due to
retire. Consequently, he was not employed in a supervisory capacity
which would have entitled him to retire
at age 65. Thus, the fact
that Ragmaan worked beyond the age of 60 has no bearing on the
fairness of Viljoen being retired at that
age.
[28]
It is true that it turned out that Mthiya had retired after his
agreed retirement age of 65, albeit that it was in the
same year he
reached that age. However, Viljoen’s case was based on other
employees being allowed to work after the age of
60, because he
asserted that this retirement age applied to everyone including
Ragmaan and Mthiya, whom he compared himself
with. The essence
of his claim was that only one retirement age applied to everyone. He
did not plead, as an alternative, that
even if a two-tier retirement
age system applied, he still should not have been dismissed because
one of them had worked beyond
a different agreed retirement age,
which was later than his own. In any event, it seems to be common to
the decisions comprising
the majority in the Constitutional Court
that the employer has a choice whether to waive the requirement that
an employee must
retire on the mandatory retirement date. If an
employee could insist that waiver of one employee’s retirement
on the date
it fell due it would compel the employer thereafter to
waive reliance on the mandatory retirement date for all employees,
that
would render the right of waiver nugatory. At the very least,
Viljoen ought to have expressly pleaded this alternative case so PPEW
could have addressed it and the court have considered it.
[29]
In light of the reasoning above, I am not persuaded that Viljoen has
proven that his retirement at the applicable retirement
age of 60 was
an automatically unfair dismissal in terms of s 187(1)(f) of the LRA.
[30]
Notwithstanding the result, this is not a case in which a cost award
would be appropriate. The court is greatly
indebted to Ms Duba
of Legal Aid for representing the applicant.
Order
1.
The referral is dismissed.
2.
No order is made as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
.
Appearances:
For the
Applicant:
J Duba from Legal Aid
SA.
For the
Respondent:
W Jacobs from Willem Jacobs and Associates
[1]
Article 5 of the Convention, which South Africa has not ratified,
states:
“
Article
5
The
following, inter alia, shall not constitute valid reasons for
termination:
(a)
union membership or participation in union activities outside
working hours or, with the consent of the employer, within working
hours;
(b)
seeking office as, or acting or having acted in the capacity of, a
workers' representative;
(c)
the filing of a complaint or the participation in proceedings
against an employer involving alleged violation of laws or
regulations or recourse to competent administrative authorities;
(d)
race, colour, sex, marital status, family responsibilities,
pregnancy, religion, political opinion, national extraction or
social origin;
e)
absence from work during maternity leave.”
[2]
Ragmaan62 - Older Workers Recommendation, 1980 (No. 162)
[3]
Article
5(c)
[4]
Article
22 read with Article 21. See further the discussion in C Bosch,
Section
187(2)(B) and the Dismissal of Older Workers - is the LRA Nuanced
Enough?
(2003)
24
ILJ
1283 at 1293 ff.
[5]
(2022) 43 ILJ 2736 (LAC)
[6]
Motor
Industry Staff Association & another v Great South Autobody CC
t/a Great South Panelbeaters; Solidarity on behalf of
Strydom &
others v State Information Technology Agency SOC Ltd
(2025) 46
ILJ
481 (CC)
[7]
At
paragraphs 175 and 207, with the minority ratio appearing at
paragraph 109.