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I note Ingrid Lewin’s opinion that the CCMA was right in this case based on her reference to the LAC’s decision in the Karan case. There is a compelling argument that the employer who allows an employee to continue working past retirement age should not be stuck with staff members who have endless employment merely because they were allowed to work past retirement age. So Ingrid may well be correct that the employer should be able to make the retirement call at any time after the retirement age has been reached to avoid ‘infinite’ employment.
But I’m still not 100% convinced of this. In Karan, even though there was no agreement on the retirement age – there was an agreement that the employer could give notice of termination at any time at its discretion. In effect this became the agreed condition for continued employment after the retirement age – Scenario 2.
But what if there is no agreement or condition as in Frey du Toit – Scenario 3? The possibility still exists in my opinion that the employee may be entitled to due process before dismissal. But the employer may equally be able to dismiss based on age after retirement age without incurring liability for an automatically unfair dismissal. The rationale for this would be equivalent to “fair discrimination” as found in the EEA. This in turn is on the assumption that “normal retirement age” in 187 (2) (b) is the equivalent of a statutory version of an expiry date in a fixed term contract. And like continued employment after the expiry of an FTC – an employee would be entitled to the rights to fair dismissal.