South Africa’s labour market is shaped by a diverse and dynamic workforce. While significant strides have been made in addressing racial, gender, and disability discrimination, ageism remains a subtle yet powerful force, often overlooked and unchallenged. This form of discrimination continues to limit opportunities, particularly for older workers, despite legal protections.
What is Age Discrimination?
Age discrimination occurs when an individual is treated unfairly in the workplace due to their age – whether perceived as “too young” or “too old.” It can affect various aspects of employment, from hiring and promotions to dismissal and retirement. In South Africa, this form of discrimination is expressly prohibited under the Employment Equity Act 55 of 1998, which lists age as a protected ground against unfair discrimination.
Understanding Retirement Age in South Africa
There is no fixed legal retirement age in South Africa for the general workforce. Instead, retirement age is typically guided by one or more of the following:
- Employment Contract: If an employment contract specifies a retirement age (commonly 60–65), it becomes legally binding, provided it is applied consistently;
- Collective Agreements or Bargaining Council Determinations: In unionised sectors (such as mining, education, and healthcare), retirement age may be set through formal agreements;
- Established Practice: Even without a formal policy, if employees consistently retire at a certain age (e.g., 65), and this is commonly accepted in the organisation, it may be considered the de facto retirement age.
Legal Protections Against Ageism:
The Employment Equity Act prohibits both direct and indirect discrimination based on age. Employers are legally required to provide equal opportunity and fair treatment in all employment practices. Additionally, the Labour Relations Act protects employees from unfair dismissal due to age. An employer may not terminate employment solely because an employee reaches a certain age — unless that age is clearly defined and mutually agreed upon in the employment contract, as was the case in Solidarity obo Strydom v State Information Technology Agency [2020], where the Court held that it was unfair to dismiss an employee solely on the basis of age where no formal retirement policy existed. This case highlighted the importance of clear and agreed-upon retirement provisions.
Can Employees in the Same Workplace Have Different Retirement Ages?
The case of Viljoen v Peninsula Plumbing and Engineering Works (Pty) Ltd (C383/2021) [2025] ZALCCT 31 provides useful guidance on the matter. The employee worked as an artisan plumber at Peninsula Plumbing and Engineering Works (Peninsula) from August 2008 until his termination on October 12, 2020. The employee referred the matter and claimed age discrimination, citing two other employees who were permitted to work after the age of sixty. It was later determined that the other two employees were employed in a supervisory capacity, whose agreed-upon retirement age was 65. The court determined that Viljoen’s dismissal was fair.
Employers may set different retirement ages based on occupational roles or the nature of the work, for example:
- Pilots, firefighters, or heavy-duty drivers might retire earlier due to the physical demands and safety concerns of the job.
- Administrative or managerial staff may have a later retirement age (e.g. 65).
However, it is imperative that employers ensure that their policies and procedures clearly reflect the accepted age(s) of retirement in their workplace, and that the determined age(s) of retirement is applied consistently to their retiring employees.
Conclusion:
While South African law permits varying retirement ages within the same organisation, these differences must be justifiable, fair, and consistently applied. Whether determined by contract, job function, or collective agreement, retirement policies should be clearly documented and mutually agreed upon. Employers who proactively ensure compliance not only uphold the law but also protect the dignity and rights of all employees, regardless of age. Eliminating ageism in workplace practices is not just a legal obligation, but a step toward true equity and inclusion in South Africa’s workforce.
