When must I retire?

2015-08-12 06:00


I am 59 years old and have been wor-king for nearly 20 years at the same company. The office manager recently told me that I would have to retire when I turn 60 as that was the age everyone retired from the company. I had heard that most people retired at 60, but was hoping that I could stay on till 65. Must I retire at 60 or am I allowed to continue working till I am 65?


In South Africa there is no single applicable retirement age which applies across the board to all employees. This means that the retirement age applicable to an employee will depend on the speci-fic employee’s situation. Firstly, it will mean establishing whether the employer has contractually agreed with the employee that the employee must retire at a certain age. Usually this will be contained in an employment agreement concluded between the parties or in the terms and conditions of service of the employer.

Without an agreement between the employer and the employee on a specific retirement age, one will need to determine what the normal retirement age of the company is, which will depend on the circumstances of the employee’s position and other relevant factors as discussed below.

The Labour Relations Act determines that a dismissal based on age is not automa-tically unfair if the employee has reached the normal or agreed retirement age. But without an agreement on the retirement age the fairness of the proposed retirement age may be disputed. For an employer to prove its normal retirement age our courts have agreed that the employer must show that it is an age which corresponds to and is applied to employees in a similar category as yours. In addition to this, the retirement age becomes the norm if employees have been retiring at that age long enough that it can be said to be the norm.

In your case, it would be important to determine whether your employment contract or conditions of service determine that the retirement age of the employer is 60 years. If there is no clear indication of an agreement to such a retirement age, one will have to assess whe-ther the normal retirement age of the employer is 60 years. If this is the case, the employer will have grounds to insist on your retirement, but if not, the employer could be guilty of an unfair dismissal should he insist on your retirement, based solely on age.

You should also note that irrespective of your employer’s retirement age, you are still free to negotiate with your employer to remain in employment, and this can be suggested as an option to consider should your employer’s retirement age be established as being at 60. This is then a negotiation and the employer cannot be forced to accept your continued employment and may also attach conditions to such acceptance of continued employment. The advice of a labour specialist is recommended.

) Jeanette Monahadi is an associate at Phatshoane Henney Attorneys

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