Imatu v Umkhanyakude District Municipality

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: I Lawrence AJ
• Judgment Date: 26 May 2022
• Docket Number: D908/17
• Hearing Date: 26 May 2022
• Court: Labour Court
• Citation: 2022 JDR 2067 (LC)

Lawrence AJ:

Introduction:

[1]

The Applicant in this matter the Independent Municipal & Allied Trade Union ("IMATU") acting on behalf of its members namely, SP Hlabisa and 7 others.

[2]

The details of the individual members, who are party to this dispute, are set out in Annexure B to the Statement of Case that IMATU filed on their behalf.

[3]

The individual members represented by IMATU will hereafter be referred to as the Applicants.

[4]

The matter came before this Court as a trial with issue in dispute revolving around whether the termination of the individual Applicants' services, on the 31st of August 2015, was automatically unfair age related discrimination in the terms contemplated by Section 187 (1)(f) of the Labour Relations Act 66 of 1995 ("the Act").

[5]

It was not disputed that the Respondent had terminated the employment of the Applicants as they were all over the age of sixty (60) years.

[6]

The Respondent's position is that the Applicants had passed the normal retirement age of sixty (60) and it was therefore entitled to retire them in terms of Section 187 (2) (b) of the Act.

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Lawrence AJ

[7]

The letters of termination that were issued to the Applicants clearly state that the reason for the termination of their contracts is on account of the fact that they had reached the age of sixty (60) years.

[8]

The pre-trial minute that was handed up as "exhibit C" indicated that the Applicants had been permanently employed by Respondent, on different dates and in various positions.

[9]

As at the termination date, namely 31 of August 2015, the Applic as follows:

a.	S P Hlabisa - 61 years and 4 months;
b.	T P Mtshali - 60 years and 11 months;
c.	T A Gazu - 62 years and 2 months;
d.	B Gumede – 62 years and 7 months;
e.	M H Mdluli - 60 years and 4 months;
f.	T Msweli - 60 years and 2 months;
g.	B W Mabuyakhulu - 62 years and 11 months; and
h.	B S Maklina - 60 years and 2 months;

[10]

By the time this matter got to trial, it was common cause that all of the Applicants had passed the age of sixty five (65) which they contend to be the applicable retirement age beyond which they are not be entitled to continue working.

[11]

When the litigation commenced, the Applicants framed their "Relief Sought", per the statement of case filed on 23 June 2017, as follows:

"in the light of the foregoing the applicants seek an order in the following terms:

a)

that the dismissals of the applicants on account of their age was automatically unfair in the circumstances;

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Lawrence AJ

b)

that the members be reinstated from the date of their dismissals without any loss of remuneration or benefits, save for pension benefits in respect of those applicants belonging to the Government Employees Pension Fund until they reach an age of retirement agreed by the parties, or in the absence of such agreement they reach the age of 65;

c)

Alternatively, should the court deem reinstatement inappropriate, the members be awarded compensation equivalent to twenty four months remuneration;

d)

Costs of suit;

e)

Further and/or alternative relief"

[12]

The pre-trial minute, namely exhibit "C" repeats the very same prayer for relief as is foreshadowed in the Applicants' statement of case.

[13]

Notwithstanding this Ms Harvey, on behalf of the Applicants, submitted in her closing argument, that as the Applicants cannot be reinstated they should be each be awarded back pay, from 31 August 2015 to the various dates on which they would have each reached the age sixty five (65).

[14]

In addition to this, (and as an alternative) she argued that the Applicants equivalent to twenty four (24) months remuneration on account of the automatically unfair discrimination perpetrated by the Respondent.

[15]

I will return to the issue of whether:-

15.1

the Applicants are entitled to be claim both back pay and compensation given that this is not the relief claimed in the pleadings by the Applicants, and

15.2.

Secondly, in a case such as the present, where reinstatement is not possible, an Applicant should be entitled to notionally claim back pay in terms of S193 of the Act and then also couple that with a claim for compensation in terms of S 194(3).

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Lawrence AJ

[16]

The Respondent, in turn seeks an order dismissing the Applicants' referral.

[17]

It was apparent at the inception of this matter that the Applicants had served their statement of case on 27 June 2017 - almost two years after their services were terminated.

[18]

The Applicants had, however, filed and served an application for condonation for the late referral of the dispute to this Court.

[19]

The Respondents also had sought condonation for the late filing of their statement of response, which was filed some four weeks after it was apparently due in terms of the Rules.

[20]

I was advised that, by agreement between the parties, the issue of condonation had been dispensed with and there was no need for it to be traversed by either party and by consent the delays in the matter were condoned.

[21]

The parties then proceeded to deal with the merits of the matter.

[22]

In terms of the pre-trial minutes exhibit "C" the Respondent accepted that it bore the duty to begin.

[23]

On the account of the unavailability of the Respondents only witness at the commencement of the trial, the Applicants agreed to begin by leading the evidence of their witness.

The case for the Applicants:

[24]

The only witness called on behalf of the Applicants, was Mr Njabulo Mthiyane, a chief support services officer, employed by the Respondent since 2009.

[25]

He also gave evidence in his capacity as a shop steward and the chairperson of the trade union, IMATU's local constituency.

[26]

The Applicants were all previously employed by the Respondent in various capacities until they were forced to retire on the 31st of August 2015.

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Lawrence AJ

[27]

The Applicants had anticipated working until they reached the age of sixty five (65) years.

[28]

By reference to the Bundle of Documents handed up as exhibit "B", he indicated who the eight Applicants were and which pension/provident funds they each belonged to.

[29]

From his evidence, it was apparent that the following Applicants namely, Mr Mtsweli, Mr Mdluli and Mr Maklina were members of the Natal Joint Municipal Pension Fund ("NJMPF").

[30]

The remaining other five Applicants belonged to the Government Employees Pension Fund ("GEPF").

[31]

He indicated that the retirement age, in terms of NJMPF, is sixty five (65) and he is familiar with this as he is also a member of this fund.

[32]

As far as the GEPF is concerned, the retirement age is similarly sixty five (65) years of age and the members guide was referred to by Mr Mthiyane as being indicative of this fact.

[33]

On the 18th of August 2015, he wrote to the Respondent's then municipal manager raising issue about the fact that the eight Applicants were being compelled to retire as of 31st of August 2015.

[34]

He made the point in his correspondence, at page "B" 21, that the retirement age for both the NJMPF and the GEPF Applicant employees is sixty five (65) years of age.

[35]

In his letter, he implores the Respondent's municipal manager to resolve the matter before it escalates to a level of a dispute having to be declared.

[36]

When no response was received, he drafted a letter declaring a dispute in respect of the matter and attaching a list of the affected Applicants.

[37]

On the 10th of September the municipal manager responded agreeing to meet on the 29th of September 2015 but this meeting never eventuated.

[38]

Mr Mthiyane referred to pages "B" 19 and "B" 19A.

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Lawrence AJ

[39]

On page "B" 19 the gross monthly salaries of each of the Applicant employees is reflected in the schedule which also contains an extrapolation of the compensation claimed on behalf of each of the Applicants, as a solatium, quantified at a total of twenty four (24) months remuneration.

[40]

Page "B" 19A, on the other hand, indicates the dates of birth of each the Applicants; shows the date of their respective ages as of the 31st of August 2015 and the period, from the date of dismissal to dates when they each of the Applicants would have turned sixty five (65) years of age.

[41]

Mr Mthiyane assisted the Applicants to lodge formal grievances with the Respondent dealing with their anticipated forced retirements but the Respondent adamantly maintained its stance that the age of retirement was sixty (60) years.

[42]

He made reference to the fact that the Respondent had wanted to reduce the age of compulsory retirement and to this end it had entered into a collective agreement under the auspices of the South African Local Bargaining Council on the 31st of April 2012.

[43]

In terms of this agreement, the retirement age was pegged at sixty three (63) years for new employees who joined the Respondent after that date.

[44]

In respect of existing employees such as the Applicants, the retirement age would continue to be sixty five (65) years of age.

[45]

In his view and experience, most employees would only leave the Respondent's service after reaching the sixty five (65) years of age but they could leave prior to that at their election.

[46]

He went on to contend that at present the adopted policy of the Respondent is that compulsory retirement is at sixty five (65) years of age.

[47]

Under cross examination Mr Mthiyane referred to three ages that had relevance to retirement:

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Lawrence AJ

1.

Fifty...