Harris v Ocean Traders International (Pty) Ltd (JS710/13) [2016] ZALCJHB 63 (23 February 2016) per Lagrange J.

Employers must have sound policies, including the retirement age, and ensure that employees know about them.  Employers who dismiss employees for a reason related to age but fail to  prove an agreed or normal retirement age expose themselves to claims for automatically unfair dismissal under the LRA and discrimination under the EEA.  The applicant was awarded compensation of R1,283,760 (16 months remuneration) and costs.  The business had been taken over a number of times and there was no fixed retirement policy.  In assessing compensation and damages Lagrange J referred to two important LAC judgments where it was pointed out that whilst compensation is limited to 24 months (in this case of automatic unfair dismissal), no limit is placed on the quantum of damages that can be awarded under the EEA but the award must be just and equitable.

Earlier LAC judgments

Textbook

Du Toit et al Labour Relations Law: A Comprehensive Guide 6th ed (2015, Lexis Nexis) see discussion of the topic at pages 438, 535, 575 and 717.

Excerpt [footnote omitted]

[33] Where there is a single action with claims under the LRA and the EEA based on the employee being discriminated against and the court is satisfied that there has been an automatically unfair dismissal and that the employer’s action also constitutes a violation of the EEA, it must determine what is a just and equitable amount that the employer should be ordered to pay as compensation.  In arriving at this determination, the court should not consider separate compensation under the LRA and the EEA but what is just and equitable for the indignity the employee has suffered.  In doing this, it may take various factors into account, inter alia, as set out in Tshishonga, additionally, including but not limited to the position held by the employee within the employer’s establishment, the remuneration he earned, how reprehensible and offensive was the employer’s conduct, how if at all did it affect the employee and what motivated the wrongful conduct by the employer to act as it did, etc.   If the claim is under   the LRA only, the court must, if the amount determined by the court to be just and equitable exceeds the threshold set in s 194(3) of the LRA, reduce the amount of compensation to bring it within the limitation provided in s 194(3).  The amount will not have to be reduced though if, like in this matter, the claim is brought under both the LRA and the EEA because there is no limit prescribed to the amount of compensation that can be awarded under the EEA.  The importance of this is that the employee’s right to claim under both the EEA and the LRA is recognised and given effect to while at the same time the employer is not being penalised twice for the same wrong as a single determination is made as to what is just and equitable compensation for the single wrongful conduct.