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When Must a Domestic Worker Retire

WHEN MUST A DOMESTIC WORKER RETIRE  

In South Africa persons qualify for “old age pension” or “old persons grant” when they are 60 years and older.  

When it comes to the question of retirement in the case of domestic workers this does not mean that it is an automatic rule that a domestic worker should retire when he/she turns 60 years of age.  

There are many domestic workers who are working beyond the age of 60 years and who are still delivering a high standard of performance at this age. Now the question arises of how do we handle this very important aspect and why is it such an mine field in South African employment law.  
 
  • What does the labour legislation determine regarding retirement.
Both the Basic Conditions of Employment Act and the Sectoral Determination 7 are silent on this matter and Chapter 2 of the Employment Equity Act in particular Section 6 makes it an offence where the employee can proof that the employer unfairly discriminated against the employee on the basis of amongst other things the age of the employee.  
 
The Labour Relations Act section 187 (1)(f) states clearly that the dismissal of an employee based on his or her age will be automatically unfair and such a dispute will be dealt with by the Labour Court and up to 24 months of the employee’s remuneration may be awarded as compensation.
 
Now although we find an answer to this question in section 187 (2) (b) of the Labour relations Act this answer poses new challenges. The particular section provides that “a dismissal based on age is fair if the employee reached the normal or agreed retirement for persons employed in that capacity.”  

Is the “normal retirement age” then 60 years of age or is it 65 or even 55 or maybe 70 years of age?
 
To answer this question it is important that we also take cognisance of the interpretation and clarification our labour courts applied.  

In Rubin Sportswear v SA Clothing & Textile Workers Union and others (2004) 25 ILJ 1671 (LAC), the LAC held, “Section 187(1)(b) creates two bases upon which an employer can justify the dismissal of an employee on grounds of retirement age. The one is an agreed retirement age, the other is normal retirement age. Those are the only two bases.” (Jan Du Toit, The South African Labour Law Guide).
 
In the domestic worker industry is very unlikely that the employer will have a standing policy and when a domestic worker joins the employer that the domestic worker will the fall under that particular policy.  

What is more likely is that the parties should come to an agreement when constituting the relationship and to agree what the retirement age would be. This would be in the form of an employment contract and it is important to note that the standard form supplied by the Department of Labour as a template to employers, to confirm the particulars of employment in terms of Sectoral Determination 7, falls terribly short in addressing this issue as just one example.  
 
  •  What are the consequences when I terminate the employment of my domestic worker due to old age.
There is no reason to believe that the CCMA would hold a different opinion when a domestic worker alleges unfair dismissal and probably unfair discrimination when her/his services are terminated because the employer feels that the employee has reached the normal retirement age.
 
My opinion is that an employer would probably face a similar order as what was made in the Hibbert v ARB Electrical Wholesalers (Pty) Ltd (D775/10) [2012] ZALCD 13; [2013] 2 BLLR 189 (LC) (27 September 2012), where the respondent was ordered to compensate the applicant an amount equivalent to 12 month’s remuneration.  

Edomestix therefore believes that a contract of employment be put in place to grant the employer proper protection from not only this aspect of retirement but also other risks that are discussed in the relevant sections.  

If you do not find an answer to a specific question you may have please utilize any of the following communication channels and we will assist you and respond to your specific question as soon as possible;
 
  •  Visit of website www.edomestix.co.za and post your question on our Blog or on our “Contact Us” page.
  • You may also contact our Call Centre at 071 147 1213 and a Consultant will address your question.
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Prepared by Albert van der Merwe
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