Unfair age discrimination: Automatically unfair dismissal

2 Comments

1. 

   GilesFiles on September 2, 2015 at 4:13 pm

   Excerpt from Du Toit et al Labour Relations Law: A Comprehensive Guide (6th ed, 2015 published by LexisNexis) with footnotes omitted [subscription required].

   It could be argued that, since section 187(2)(b) limits the constitutional right to fair labour practices and equal treatment, it must be interpreted restrictively. This would suggest that, if an employee works past the agreed or normal retirement age, the usual rules relating to dismissal should apply. On this basis it is also arguable that a retirement policy should be regarded as discriminatory if it is based solely on age, without reference to the nature of the job or the capacities of the employee. Since section 187(2)(b) lays down an excepting or qualifying proviso, it cannot be construed as narrowing the scope of section 187(1)(f) by creating a right for an employer to terminate employment based solely on age and in disregard of that employee’s right not to be unfairly dismissed.

   It is submitted that the precise scope of section 187(2)(b) awaits further clarification, particularly in view of the important socio-economic factors bearing on the question of the continued employment of older employees and international developments towards abolishing compulsory retirement.

   Excerpt from the 5th edition of Du Toit et al Labour Relations Law: A Comprehensive Guide fn 133 on p 403

   On this basis it is also arguable that a retirement policy could be regarded as unfair if it is based solely on age, ie, without reference to the nature of the job or the capacities of the employee. It could also be argued that, as s 187(2)(b) lays down an excepting or qualifying proviso, it cannot be construed as enlarging the scope of s 187(1)(f) by creating a right for an employer to terminate employment based solely on age and with disregard for that employee’s right not to be unfairly dismissed. See Craies Statute Law 7 ed at 218, quoted with approval in Mphosi v Central Board for Co-Operative Insurance Ltd 1974 (4) SA 633 (AD) at 645. See also Premier of the Eastern Cape Province v Sekeleni [2002] 3 All SA 407 (SCA).

2. 

   GilesFiles on September 2, 2015 at 4:16 pm

   Extract from Prof Darcy du Toit’s latest editorial Is section 187(2)(b) of the LRA constitutional? on IR Network published on-line by LexisNexis [subscription required].

   Perhaps the strongest argument in support of allowing a claim of unfair discrimination in addition to a claim of automatically unfair dismissal, notwithstanding section 10(1) of the EEA, is that unfair dismissal involves an infringement of an employee’s right to fair labour practices whereas unfair discrimination is a violation of her or his right to equality and dignity. While all basic rights in the Bill of Rights must be read as a harmonious whole, the right to fair labour practices is a socio-economic or so-called “third-generation” right in contrast to the right to equality, which is not only a “first-generation” right but also a core value of the Constitution that must inform all other rights.

   This being so, it would be incongruous to confine victims suffering unfair discrimination in the form of dismissal to compensation limited in terms of the LRA whereas compensation for lesser forms of discrimination – for example, non-promotion – is not limited. The only way of acknowledging the indivisible nature of unfair discrimination in all its forms is to allow victims the same remedy – that is, compensation in terms of section 50(2) of the EEA.
   . . . .

   As a general principle, statutory provisions that limit a basic right – in this case, the right to equal treatment – must be interpreted restrictively (that is, limiting that right as little as possible). But it is difficult to see how section 187(2) can be interpreted except in terms of its plain language.

   This raises the question of its constitutionality. Three points may be noted in this context:
   • Arguably, the three grounds of dismissal provided for in the LRA – conduct, capacity (which includes “compatibility”) and operational requirements – cover every possible situation where an employer could legitimately consider divesting itself of an employee’s services.
   • Arguably, recognising “age” as a prohibited ground of discrimination not only in terms of the LRA but also in terms of the EEA raises question marks about circumventing it in the context of the LRA by simply including a waiver in a contract of employment.
   • Generally, waiving a basic right, and the right not to be discriminated against in particular, has been held to be impermissible.

   Also internationally, the notion of a compulsory age of retirement is suspect and is prohibited in certain countries. There is little to be said for it save that it is traditional. Pension funds, too, may benefit from members contributing for longer and (by the same token) drawing benefits for fewer years. It may be time to reconsider the issue in South Africa, most obviously by testing the constitutionality of section 187(2)(b) of the LRA.