Bank v Finkelstein t/a Finkelstein and Associates (JS219/15) [2016] ZALCJHB 428 (26 October 2016)

Bank v Finkelstein t/a Finkelstein and Associates (JS219/15) [2016] ZALCJHB 428 (26 October 2016)

The court found that the applicant was dismissed solely on the basis of her age, with no agreed or normal retirement age established by policy, practice, or industry norm in the respondent's firm. The respondent's reliance on a retirement age of 60 was unfounded and not communicated to the applicant. The dismissal was therefore automatically unfair under section 187(1)(f) of the LRA. The court further held that the same facts substantiated a claim of unfair discrimination under section 6(1) of the EEA. The applicant was entitled to compensation for automatic unfair dismissal and discrimination, as well as unpaid salary and leave pay. The court awarded 18 months' salary as compensation,...

Citation
[2016] ZALCJHB 428
Parties
Applicant: Heather Elise Bank; Respondent: Mark Finkelstein t/a Finkelstein and Associates
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
26 October 2016
Case Number
JS219/15
Procedural Posture
Automatic Unfair Dismissal / Trial
Outcome
The applicant's dismissal was declared automatically unfair and discriminatory based on age. The respondent was ordered to pay compensation, unpaid salary, leave pay, and costs.
Judges
S Snyman
Legal Topics
Automatic Unfair Dismissal, Retirement Age, Unfair Discrimination, Employment Equity Act, Compensation, Leave Pay
Labour Law Automatic Unfair Dismissal Retirement Age Unfair Discrimination Employment Equity Act Compensation Leave Pay

Case Brief

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Parties

Heather Elise Bank

Applicant

Mark Finkelstein t/a Finkelstein and Associates

Respondent

Procedural Posture

Automatic Unfair Dismissal / Trial

Legal Issues

  1. 1 Whether the applicant's dismissal based on age constitutes automatic unfair dismissal under section 187(1)(f) of the LRA.
  2. 2 Whether a normal or agreed retirement age existed in the respondent's practice to justify dismissal under section 187(2)(b) of the LRA.
  3. 3 Whether the applicant was unfairly discriminated against on the basis of age under section 6(1) of the EEA.

Ratio Decidendi

The court found that the applicant was dismissed solely on the basis of her age, with no agreed or normal retirement age established by policy, practice, or industry norm in the respondent's firm. The respondent's reliance on a retirement age of 60 was unfounded and not communicated to the applicant. The dismissal was therefore automatically unfair under section 187(1)(f) of the LRA. The court further held that the same facts substantiated a claim of unfair discrimination under section 6(1) of the EEA. The applicant was entitled to compensation for automatic unfair dismissal and discrimination, as well as unpaid salary and leave pay. The court awarded 18 months' salary as compensation,...

Court Disposition

The applicant's dismissal was declared automatically unfair and discriminatory based on age. The respondent was ordered to pay compensation, unpaid salary, leave pay, and costs.

Orders

  • The applicant's dismissal by the respondent constitutes automatic unfair dismissal under section 187(1)(f) of the LRA, based on age.
  • The applicant was discriminated against as contemplated by section 6(1) of the EEA, based on age.