Hibbert v ARB Electrical Wholesalers (Pty) Ltd (D775/10) [2012] ZALCD 13; [2013] 2 BLLR 189 (LC); (2013) 34 ILJ 1190 (LC) (27 September 2012)

Hibbert v ARB Electrical Wholesalers (Pty) Ltd (D775/10) [2012] ZALCD 13; [2013] 2 BLLR 189 (LC); (2013) 34 ILJ 1190 (LC) (27 September 2012)

The court found that the applicant did not agree to retire at age 64; rather, the respondent unilaterally decided to retire him. The respondent failed to establish a normal retirement age applicable to the applicant, as he was exempt from the provident fund and there was no consistent retirement policy for external salespersons. The evidence presented regarding retirement ages of other employees was insufficient to prove a norm. Consequently, the dismissal was automatically unfair in terms of section 187(1)(f) of the LRA and constituted unfair discrimination under section 6 of the EEA. However, the applicant was not entitled to damages under the EEA due to the absence of a determinable...

Citation
[2012] ZALCD 13
Parties
Applicant: Hibbert N.D.; Respondent: ARB Electrical Wholesalers (Pty) Ltd
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
27 September 2012
Case Number
D775/10
Procedural Posture
Civil Trial / Final Judgment
Outcome
The applicant’s dismissal was automatically unfair and constituted unfair discrimination. Damages under the EEA were denied. Compensation equivalent to twelve months’ remuneration was awarded, along with costs.
Judges
R Lagrange
Legal Topics
Automatically Unfair Dismissal, Age Discrimination, Employment Equity Act, Normal Retirement Age, Compensation, Damages
Labour Law Automatically Unfair Dismissal Age Discrimination Employment Equity Act Normal Retirement Age Compensation Damages

Case Brief

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Parties

Hibbert N.D.

Applicant

ARB Electrical Wholesalers (Pty) Ltd

Respondent

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Was the applicant dismissed or did he agree to retire at age 64.
  2. 2 Did the respondent establish a normal or agreed retirement age applicable to the applicant.
  3. 3 Was the dismissal automatically unfair in terms of section 187(1)(f) of the LRA.

Ratio Decidendi

The court found that the applicant did not agree to retire at age 64; rather, the respondent unilaterally decided to retire him. The respondent failed to establish a normal retirement age applicable to the applicant, as he was exempt from the provident fund and there was no consistent retirement policy for external salespersons. The evidence presented regarding retirement ages of other employees was insufficient to prove a norm. Consequently, the dismissal was automatically unfair in terms of section 187(1)(f) of the LRA and constituted unfair discrimination under section 6 of the EEA. However, the applicant was not entitled to damages under the EEA due to the absence of a determinable...

Court Disposition

The applicant’s dismissal was automatically unfair and constituted unfair discrimination. Damages under the EEA were denied. Compensation equivalent to twelve months’ remuneration was awarded, along with costs.

Orders

  • The respondent’s dismissal of the applicant on account of age in the absence of a normal retirement date was automatically unfair in terms of section 187 of the LRA and an act of unfair discrimination in terms of section 6 of the EEA.
  • The applicant’s claim for damages under the EEA is dismissed.