This summary of age discrimination law in South Africa has been prepared by ENSafrica: www.ensafrica.com.
Overview
The Constitution of the Republic of South Africa, 1996, (‘Constitution’) contains a general prohibition against discrimination and states that “everyone is equal before the law and has the right to equal protection and benefit of the law.” It states that neither the state nor any person may unfairly discriminate against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
The Constitution also provides that national legislation must be enacted to prevent or prohibit unfair discrimination. This constitutional obligation to give effect to the right to equality has been fulfilled through the enactment of the Employment Equity Act 55 of 1998 (‘EEA’), the Labour Relations Act 66 of 1997 and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. The first two statutes deal with discrimination in the employment sphere, while the third deals with discrimination in the wider society.
Who’s Covered?
All individuals in South Africa are protected against age discrimination.
What enforcement / remedies exist?
An aggrieved individual may take various routes to challenge an unfair discrimination on the basis of age, including:
Filing a complaint with the South African Human Rights Commission (‘SAHRC’);
Referring a dispute to the Equality Court;
Challenging the unfair discrimination through the various employment law dispute resolution bodies.
South African Human Rights Commission
The SAHRC is established by the South African Constitution and is empowered to investigate any alleged violation of human rights, regardless of whether a complaint has been made to the Commission, and to secure redress. The SAHRC may seek to resolve a dispute by way of mediation, negotiation, conciliation or it may convene a public hearing. It may also publish the findings of an investigation, which may be binding on the parties involved. It is also empowered to arrange for, or provide, financial assistance to enable proceedings to be instituted in a competent court for the necessary relief.
The Equality Court
An individual who alleges having been discriminated against on the basis of age is entitled to institute proceedings in the Equality Court. The Equality Court is established by the Promotion of Equality and Prevention of Unfair Discrimination Act and is empowered to order various forms of relief including declaratory orders, interim orders, declaring a settlement agreement an order of court, ordering the payment of damages, restraining unfair discriminatory practices and ordering that an unconditional apology be made.
Because the EEA provides remedies where the discrimination occurs in the context of the employment relationship, employees are not entitled to refer unfair discrimination disputes to the Equality Court if the discrimination occurs in the employment context.
Employment Law
Under section 10 of the EEA, an employee who alleges unfair age discrimination in any employment policy or practice, other than a dismissal on the basis of age, is entitled to refer a dispute to the Commission for Conciliation, Mediation and Arbitration (‘CCMA’). The CCMA must then attempt to resolve the dispute through conciliation. If conciliation, the dispute may be referred to arbitration conducted under the auspices of the CCMA if the employee earns less than a certain earnings threshold determined under the Basic Conditions of Employment Act. (As at September 2023, this threshold is ZAR241,110.59 per year, but it is usually increased annually from approximately 1 March). Otherwise, the dispute must be referred to the Labour Court for adjudication.
An employee who has been unfairly discriminated against on the basis of age, can be awarded compensation or damages that are just and equitable in the circumstances. An order can also be made directing the employer to take steps to prevent unfair discrimination in future.
In the event that the alleged unfair age discrimination takes the form of a dismissal, the former employee may refer an unfair dismissal dispute to the CCMA. If conciliation under the auspices of the CCMA fails, the employee may argue that the dismissal was automatically unfair and refer the matter to the Labour Court for adjudication. A finding of an automatically unfair dismissal could attract the remedy of reinstatement or an order for the payment of compensation up to a maximum amount equivalent to 24 months’ remuneration, calculated at the employee’s rate of remuneration on the date of dismissal. A dismissal based on age is deemed to be fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.
How common are claims?
According to the SAHRC for the 2020/2021 financial year, 1% of equality related complaints that were lodged with the SAHRC were on the basis of age. In comparison, 60% of the complaints were on the basis of race.
There are no recent statistics of the number of employment related disputes referred to the CCMA concerned allegations of unfair discrimination on the basis of age, but in general terms they are fairly uncommon.
What claims are most common and what are the trickiest issues for employers?
Typically, claims relating to age discrimination arise in the context of retirement. In these cases, employees who have been asked by their employers to retire may allege that they have been unfairly dismissed due to their age.
As indicated earlier, the Labour Relations Act creates an exception to the general rule that employees should not be discriminated against on the basis of their age, by providing that a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity. The main challenge that employers face in defending against these disputes is being unable to prove that there was either a normal (benchmark age for the relevant capacity) retirement age for persons employed in a particular capacity (it can be difficult to put up sufficient evidence to establish a norm in this regard) or an agreed retirement age (this can be easy if, for example, there is an express agreed retirement age in the employee’s contract of employment, but can be hard if an oral or tacit agreement is relied on)..
Retirement Age
There is no general statutory or common law retirement age. As mentioned above, employers may only require their employees to retire if there is an agreed or normal retirement age for persons employed in that particular capacity.
The Social Assistance Act 13 of 2004 provides an “older person’s grant” to individuals who have attained the age of 60 years. However, applicants would only qualify for this grant if he/she:
is a South African citizen or permanent resident or a refugee;
lives in South Africa;
does not receive any other social grant for themselves;
is not cared for in a state institution;
does not earn more than ZAR 86,280 per annum (if unmarried) or ZAR 172,560 (if married); and
does not have assets more than ZAR 1,227,600 (if unmarried) or ZAR 2,455,200 (if married).
The maximum amount that an individual individual between the ages of 60 and 74 may receive is ZAR 2,080 per month. On 1 October 2023, this amount will be increased to ZAR 2,090 per month.
The maximum amount that an individual over the age of 75 years may receive is ZAR 2,100 per month. On 1 October 2023, this amount will be increased to ZAR 2,110 per month.
Interesting Cases
In the matter of Bank v Mark Finkelstein t/a Finkelstein & Associates the Labour Court was required to determine if the employee had been unfairly dismissed on the basis that she had been discriminated against on the basis of age, contrary to the provisions of the EEA.
Ms Bank was Mr Finkelstein’s secretary in his law firm. Upon commencement of her employment (at the age of 55) there were no discussions regarding retirement and the parties had not agreed on a retirement age. There was also no established normal retirement age within the firm. Mr Finkelstein testified that he had become dissatisfied with Ms Bank’s performance during the 2 years preceding her dismissal. He further testified that he did not follow incapacity proceedings because he attributed her poor performance to her age and wanted to spare her feelings. Ms Bank vehemently denied that there was a problem with her performance or that her age was impacting her ability to perform her duties.
When Ms Bank was 64 years of age, she received a letter from Mr Finkelstein, in which he recorded that her employment was being terminated as she was required to retire because she had passed the age of retirement as provided for in the firm’s policy.
The Labour Court found that it was clear that Ms Bank was dismissed due to her age. While Mr Finkelstein argued that the true reason for Ms Bank’s dismissal was her incapacity, the Labour Court found that the dominant reason for her dismissal was her age.
Accordingly, the Labour Court was required to determine whether there was an agreed or normal retirement age, which would render Ms Bank’s dismissal fair, to which there was not one. Mr Finkelstein accordingly sought to rely on the normal retirement age which applied in his previous law firm. Interestingly, the Labour Court found that when relying on an industry norm, it is critical that the employer presents credible evidence, preferably by an expert, as to what would constitute the industry standard or norm in order to establish the retirement age. Given that Mr Finkelstein had been unable to do so, he was unable to establish that there was a normal retirement age in the industry.
The Labour Court accordingly found that Ms Bank’s dismissal was unfair. However, the Labour Court found that it could not order compensation for both the unfair dismissal and the unfair discrimination as Mr Finkelstein would then be required to pay double compensation for the same act of discrimination. The Labour Court accordingly dealt with both the unfair dismissal and discrimination claims as one claim and ordered that Mr Finkelstein pay Ms Bank 18 months’ salary as compensation.
In the matter of MISA obo Landman v Great South Autobody CC t/a Great South Panel Beaters, the Labour Appeal Court was required to determine whether the employee’s dismissal was automatically unfair on the basis that they had been unfairly discriminated against based on their age.
The employee commenced employment with Great South Panel Beaters (‘GSPB’) during November 2007. The parties entered into a written employment contract which stated that the employee’s retirement age was 60. The employee turned 60 on 15 March 2018 and continued working for GSPB in the months that followed. The parties did not raise the issue of the employee’s retirement until 14 January 2019, when GSPB wrote to the employee informing him that his services would terminate with effect from 12 February 2019 on the basis that he had reached the agreed retirement age of 60. The employee referred an automatically unfair dismissal dispute to the Labour Court alleging that he had been unfairly discriminated against based on his age.
The Labour Court held that a dismissal based on age is not automatically unfair in circumstances where the employee ‘has reached’ the normal or agreed retirement age. As the employee in this case had reached the agreed retirement age of 60, his dismissal was held to be fair.
On appeal to the Labour Appeal Court, the employee argued that where an employee continues working after having reached the agreed retirement age and neither party relies on the fact that he has reached his retirement age, a new (second) employment contract comes into existence which governs the employment relationship. It is then impermissible for the employer to rely on the retirement age stipulated in the first employment contract, as the relationship is now governed by the terms of the new employment contract. Consequently, any dismissal based on age will be automatically unfair, unless the employer can prove that the parties agreed on a new retirement age or there is a normal retirement age that applies to the employee.
The Labour Appeal Court rejected the employee’s argument and found that where an employer expressly permits an employee to work beyond the agreed or normal retirement age, this does not constitute a waiver of the right to dismiss that employee because they have reached the agreed or normal retirement age, unless waiver of that right can be inferred from the clear and unequivocal conduct of the employer. Equally, an employer’s failure to take steps to secure the retirement of his employee on reaching the agreed or normal age of retirement, does not constitute a waiver of its right to dismiss that employee any time after he or she has reached the agreed retirement age, unless such waiver can be inferred from the clear and unequivocal conduct of the employer
The Labour Appeal Court accordingly found in favour of the employer, and reiterated that a dismissal will be fair where the employee‘has reached’ the agreed or normal retirement age for persons employed in that capacity.