Truter v Carecross Health (Pty) Ltd (C956/2013) [2015] ZALCCT 8 (23 January 2015)

Truter v Carecross Health (Pty) Ltd (C956/2013) [2015] ZALCCT 8 (23 January 2015)

The court found that there was no agreed or established normal retirement age of 65 at the respondent company. The board resolution was not communicated to the applicant, nor incorporated into her contract, and no other employee had retired at 65 prior to her dismissal. The company's HR policies were inconsistent and not properly implemented. The evidence did not support the existence of a norm or agreement regarding retirement age. Therefore, the applicant's dismissal was based solely on age and constituted automatically unfair discrimination under section 187(1)(f) of the LRA. The applicant was entitled to reinstatement with retrospective effect.

Citation
[2015] ZALCCT 8
Parties
Applicant: Hilary Truter; Respondent: Carecross Health (Pty) Ltd
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
23 January 2015
Case Number
C956/2013
Procedural Posture
Unfair Dismissal Application / Trial
Outcome
The applicant's dismissal was declared automatically unfair and she was ordered to be reinstated with full retrospective effect.
Judges
Rabkin-Naicker
Legal Topics
Automatically Unfair Dismissal, Age Discrimination, Normal Retirement Age, Section 187 Lra, Reinstatement
Labour Law Automatically Unfair Dismissal Age Discrimination Normal Retirement Age Section 187 Lra Reinstatement

Case Brief

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Parties

Hilary Truter

Applicant

Carecross Health (Pty) Ltd

Respondent

Procedural Posture

Unfair Dismissal Application / Trial

Legal Issues

  1. 1 Was the applicant's dismissal based on age and thus automatically unfair under section 187(1)(f) of the LRA?
  2. 2 Did the respondent have a normal or agreed retirement age of 65 for the applicant's category of employment?
  3. 3 Is reinstatement an appropriate remedy in the circumstances?

Ratio Decidendi

The court found that there was no agreed or established normal retirement age of 65 at the respondent company. The board resolution was not communicated to the applicant, nor incorporated into her contract, and no other employee had retired at 65 prior to her dismissal. The company's HR policies were inconsistent and not properly implemented. The evidence did not support the existence of a norm or agreement regarding retirement age. Therefore, the applicant's dismissal was based solely on age and constituted automatically unfair discrimination under section 187(1)(f) of the LRA. The applicant was entitled to reinstatement with retrospective effect.

Court Disposition

The applicant's dismissal was declared automatically unfair and she was ordered to be reinstated with full retrospective effect.

Orders

  • The termination of the applicant's employment constituted an automatically unfair dismissal in terms of section 187(1)(f) of the LRA.
  • The applicant is to be reinstated into her position with full retrospective effect to 31 August 2013, within 30 days of this order.