News

by ww_mvdheerik

Baby boomer: at what age must you retire?

Employers need to be particularly on their guard for cases in which a workplace dismissal is automatically unfair. Our courts take a particularly dim view of discrimination cases falling into this category. Age discrimination is one such instance, and an employer faced with such a claim can defend it only by proving (the onus is on the employer) that the employee has reached “the normal or agreed retirement age for persons employed in that capacity”.

With “Baby Boomers” (people born between 1946 and 1964) now retiring in record numbers, expect to see a spike in disputes and litigation over retirement issues. A recent Labour Court decision illustrates just how costly any mistake in this regard is likely to be for the employer.

Forced to retire at 63, awarded nearly R1.3m:

1. An employee of an informally-run, family oriented business believed his agreed retirement age to be 65, although this was not specified in his contract of employment, and the business had no staff manual
2. The business was sold twice, each time to larger corporations with more formal policies in place
3. The employee refused to sign a new employment contract specifying an agreed retirement age of 60, saying it would be difficult to find new work at that age
4. When he was forced to retire on turning 63, he approached the Labour Court for assistance, asking for 2 years’ remuneration as compensation in terms of the LRA (Labour Relations Act) and another 2 years’ remuneration as damages for violation of the EEA (Employment Equity Act)
5. The employer defended this claim on the basis that retirement age for employees was governed by its standard retirement policy which set retirement age at 63 (previously 60)
6. On the facts however it was unable to prove this defence, and the Court found the dismissal to be unfair and awarded the employee compensation of R1,283,760 (16 months’ remuneration).
7. Note that the Court accepted that the employer had acted in good faith, genuinely believing that it was entitled to apply the standard retirement policy in the absence of a written agreement to another retirement age. Had the employer acted in bad faith, the Court would doubtless have made a much higher award – and whilst claims for automatically unfair dismissal in terms of the LRA are capped at 24 months’ remuneration, EEA awards have no such limit.

Employers: your essential action plan

1. No matter how small or informally-run your business may be, have all new employees sign written employment contracts specifying a compulsory retirement age
2. If your existing employment contracts don’t stipulate a retirement age, remedy that now. Note that this must be a matter for negotiation; you cannot unilaterally impose new terms like these on employees.

Employees: fight any form of discrimination

You have strong legal protection from all forms of unfair discrimination, direct or indirect, “on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.”

For more information contact us and make an appointment for a free consultation.

by ww_mvdheerik

Demolish or go to jail” developer in the doghouse

30 days – that’s how long a property developer will spend in the local lock-up unless he demolishes illegal building works.

A deviation from plans…

1. A property developer obtained municipal approval to build a house on his property
2. The municipality, finding on inspection that the construction taking place deviated from the approved plans, obtained a court order forbidding him to continue
3. Undaunted, the developer carried on building, ignoring notices clarifying his legal position, a direction to “cease all work forthwith” and ultimately the threat of a contempt of court order
4. Hauled back to court, he tried to convince the court that, having applied for special consent to the deviation from the plan, he believed that he was entitled to continue building
5. Unsurprisingly the Court was not impressed with this defence and, refusing to condone his conduct, found him guilty of contempt of court
6. Commenting that the object of contempt of court proceedings is not only to vindicate the court’s honour but also to compel performance of court orders, the court sentenced the developer to 30 days, suspended for 2 years on condition that he demolishes the illegal building work within 30 days, and thereafter complies with the original order

So what do you do if your neighbour builds illegally?

Regular readers will recall the oft-repeated advice to seek legal assistance immediately you become aware of any illegal building activity in your area. Don’t delay; you need to move quickly and decisively. And once again our courts have confirmed that every municipality has “not only a statutory duty but also a moral duty to uphold the law and to see to due compliance …..” Nor will our courts tread softly when it comes to assisting municipalities in carrying out this duty

For more information contact us and make an appointment for a free consultation.