The question of retirement age in South Africa
can be thorny at best.
YEI unpacks the topic of the retirement age in South Africa
Baby boomers are retiring in their scores. The only issue is that many baby boomers are not ready to retire, mostly because of financial reasons. but also because they are not ready to be “put out to pasture”. Boomers want to keep active in their areas of expertise, skill, and knowledge. Way before the “Big Birthday” looms, employers and employees need to have their ducks in a row in order to prevent any uncertainty, trouble, and dispute.
As comedian George Burns said: “Retirement at 65 is ridiculous! When I was 65, I still had pimples!”.
First things first. You cannot be forced to retire unless this is specified in your employment contract. If you do not have an employment contract that specifically speaks about the retirement age, you cannot be discriminated against because of your age and you should be allowed to work for as long you are physically and mentally able. But it really is in your best interests and the best interests of the company to agree on a retirement age.
Let’s unpack all of those statements:
Labour Relations Act
The Labour Relations Act, section 187 (1) (f) cites that in the absence of an employment contract specifying retirement age, dismissal of an employee based on his/her age is automatically unfair. This kind of dispute can be taken to the Labour Court and it is possible that should the employee win the case, compensation will be awarded in an amount of up to 24 months of the employee’s remuneration.
Employment contract with employer,
stipulating retirement at a certain age
If you have a retirement age stipulated in your employment contract, then that’s it. Be prepared to pack up and go on retirement, making sure you make preparation for retirement and leaving the workforce.
But what is the legally required retirement age?
The Basic Conditions of Employment Act does not prescribe an age at which employees should retire. Labour legislation is silent on determining the retirement age. Could it be 55, 60 or 65? It is therefore up to the employer to prescribe the retirement age for its employees with the best and safest course of action, having a formal retirement policy in place, and a written agreement with every employee specifying a compulsory retirement date.
Agreement with employer on retirement age, or company norm
If retirement age is not stipulated in your contract, but it has been agreed, and there is a company norm, then the employer is well within their rights to give you a notice period, which will equal that of a notice period for termination of employment, as set out in your employment contract. A company or organisational norm will generally be found in the company policy or in the rules of the provident or pension fund rules pertaining to the company.
No agreement and no mention of retirement in your contract
What now? No mention of a retirement age in your agreement or contract, and there is no company or organisational norm? The courts have found that it is unfair discrimination for your services to be terminated, purely because of your age. You should be able to continue to work until such time as it is proven that you are unable to do your job properly. Terminated contracts have to be in line with labour legislation i.e. due to misconduct, operational requirements or incompetence.
Penny van den Berg, HR Specialist Consultant at Optimise HR, says: If you believe that you have been unfairly treated by your employer, then you can lodge a complaint with the CCMA which ensures that all employees are treated fairly. Other than time, it costs you nothing to lodge a complaint and you don’t need to incur any legal costs.”
Working post-retirement age
It is in the best interests of the employer and the employee to clearly define and record the terms of employment after retirement age has come and gone. Issues like how long the employee can work for, and what notice period is required regarding termination of employment need to be laid out in an extended employment contract.
Older Person’s Grant
Social grants are administered by the South African Social Security Agency (Sassa). This does include the Older Person’s Grant. Social grants in South Africa are currently ‘means tested’. The means test is the process of assessing the value of your assets and income. You will only be eligible for a grant if your income and assets fall below a certain threshold.
For further information on the Older Person’s Grant, please click here.
Have your say about retirement
Now it’s your turn to share your thoughts about retirement. Are you retired already?
Would you like to share some of your experiences?
This article is provided for informational purposes only. Please note that YEI is not a legal professional, and that the above YEI article was researched and written, based on extensive research, and including the following research sources. Please seek the services and advice of a legal professional, should your circumstances warrant you to do so.
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