• Hibbert N D v ARB Electrical Wholesalers (Pty) Ltd.
  • February 1, 2013
  • Law Firm: Norton Rose Canada LLP - Montreal Office
  • Mr N D Hibbert (“Hibbert”) was employed by ARB Electrical Wholesalers (Pty) Ltd and on reaching the retirement age provided for in ARB’s Provident Fund Rules, ARB terminated Hibbert’s employment on the basis that Hibbert had reached retirement age.

    Hibbert instituted a claim in the Labour Court claiming that his dismissal was automatically unfair because it was linked to his age and that he had been unfairly discriminated against on the basis of age in conflict with the Employment Equity Act of 1998 (EEA).

    The Labour Court was required to determine whether ARB’s termination of Hibbert’s employment constituted a dismissal, and if so whether his dismissal was on the grounds of his age and automatically unfair as well as whether Hibbert had been unfairly discriminated against in respect of his age in terms of the EEA.

    ARB claimed that the ARB Provident Fund provided that 60 was the normal retirement age.

    Hibbert was not a member of the ARB Provident Fund.

    The Labour Court found that because Hibbert was not a member of the ARB Provident Fund the ARB Provident Fund normal retirement age did not apply to Hibbert.

    The Labour Court found that ARB’s termination of Hibbert employment constituted a dismissal which dismissal was automatically unfair as it was on the grounds of his age and that he had been discriminated against in respect of his age contrary to the EEA.

    The Labour Court awarded Hibbert 1 year’s remuneration as compensation.

    Lesson to be learnt: An employee’s retirement age must be agreed and form part of an employee’s contract of employment.