The applicant was a trade union representing employees of the City of Harare (respondent). In March 2014, the respondent decided to retire approximately 94 employees who were members of the applicant union, all of whom had reached the normal retirement age of 60 years. Some of these employees were already above 60 years and were awaiting late retirement at 65 years. The retirements were effected in terms of the Local Authorities Pension Fund Rules and the Collective Bargaining Agreement SI 135/12, which provided for early retirement at 55, normal retirement at 60, and late retirement at 65 years. The applicant challenged the retirements, arguing that the respondent could not retire employees at 60 without their consent, and that the respondent had not fulfilled its obligations to the pension fund and medical aid scheme before forcing retirement.
The application was dismissed with costs.
Where pension fund rules and collective bargaining agreements fix a normal retirement age, an employer is entitled to retire employees who have reached that age without obtaining their individual consent. Employee consent is only required if the employer wishes to retain the employee beyond the normal retirement age until late retirement age. Once an employee reaches normal retirement age, they serve at the pleasure of the employer. Where clear retirement provisions exist in the contract of employment, the employer is not obliged to use retrenchment procedures instead. The High Court has jurisdiction under section 171 of the Constitution and section 13 of the High Court Act to hear labour disputes seeking declaratory relief, even where a Labour Court exists.
The court observed that employees who were allowed to continue serving beyond the age of 60 years may have had a legitimate expectation that they would serve until late retirement age of 65 years. However, the court noted that the process of obtaining employee consent to serve beyond normal retirement age was not clearly documented, and employees raised no issue with this at the time. The court also commented that financial issues raised by the applicant regarding pension fund and medical aid scheme obligations were properly the subject of separate claims and ongoing arbitration, and did not impact the legality of the retirement decision itself.
This case clarifies the jurisdiction of the High Court to entertain labour matters, particularly those seeking declaratory relief which the Labour Court may not have jurisdiction to grant. It establishes important principles regarding retirement in the public sector employment context, particularly the balance between normal and late retirement ages and when employee consent is required. The case confirms that where clear retirement provisions exist in employment contracts and applicable pension fund rules, employers may enforce normal retirement age without individual employee consent, and are not required to follow retrenchment procedures instead.