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In South Africa, laws prohibit unfair discrimination in employment based on age. However, certain provisions allow for fair dismissal upon reaching the normal or agreed retirement age. The case of Seokwane v Bidvest Prestige Cleaning Services explores the application of these laws in a situation where an employee claimed unfair dismissal due to age.
Bidvest Prestige Cleaning Services (Pty) Ltd (the respondent) employed Rosy Seokwane (the applicant) under a fixed-term contract starting in July 2019. She was 62 years old at the time of employment, exceeding the agreed retirement age of 60 specified in her contract. In June 2020, during the COVID-19 lockdown, her supervisor advised Seokwane that she would be retrenched due to exceeding the retirement age. Despite requesting to work until October 2022 to pay off debts, she was retired on 30 June 2020.
Bidvest Prestige Cleaning Services claimed that Seokwane was retired due to operational requirements, as its client, Volkswagen (VW), requested a reduction in staff. Despite initially hesitating to employ Seokwane due to her age, they relented at VW’s insistence.
The court scrutinized the respondent’s actions and determined that the dismissal of Seokwane was automatically unfair. Despite relying on clauses in the employment contract and retirement policy, the court found that the respondent’s conduct violated fair retirement practices. The respondent’s decision to employ Seokwane, knowing her age, and then retire her due to operational requirements was deemed discriminatory. The court emphasized that retirement should not be used as a pretext for dismissing employees based on other reasons.
The court awarded compensation to Seokwane equivalent to 12 months of her remuneration, considering the circumstances of the case and the respondent’s failure to provide adequate notice or fair treatment.
The case of Seokwane v Bidvest Prestige Cleaning Services highlights the importance of fair treatment and non-discrimination in employment, particularly concerning the elderly. It underscores the need for employers to adhere to legal provisions regarding retirement and to avoid using age as a basis for dismissal. The judgment serves as a reminder that employees should be afforded proper notice and consideration, especially when facing retirement.