Abstract
Section 187(2)(b) of the Labour Relations Act 66 of 1995 provides that a dismissal based on an agreed or normal retirement age is considered fair. Employers frequently rely on this provision as a defence against claims of unfair dismissal. However, in practice, employers often extend employment beyond the agreed or normal retirement age and subsequently exercise broad discretion to terminate employment based on age, even where no new retirement age has been agreed upon or without adequately considering the employee’s continued ability to perform their duties.
This practice may undermine employees’ rights to equality and fair labour practices as enshrined in the Constitution of the Republic of South Africa, the Employment Equity Act 55 of 1998, and the Labour Relations Act. Although the courts have provided guidance on the interpretation of section 187(2)(b) in cases such as Badenhorst v GC Baars, Karen t/a Karen Feedlot v Randall, and Motor Industry Staff Association and Another v Great South Autobody CC t/a Great South Panel Beaters, judicial interpretations have not been entirely consistent.
Accordingly, this study examines whether the application of an agreed or normal retirement age under section 187(2)(b) is constitutionally sound, particularly in circumstances where employees are allowed to continue working beyond the stipulated retirement age.