Exploring Automatically Unfair Dismissals due to “Agreed” or “ Normal” Retirement Age in South Africa
Ntsika Qakaza 
Issue: Vol.6 No.10 Article 26 pp.2595 – 2604
DOI: https://doi.org/10.38159/ehass.202561026 | Published online 29th September, 2025
© 2025 The Author(s). This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).
This study aimed to critically evaluate the fairness of mandatory retirement policies under South African law and compare them with the legal frameworks in the United States (USA) and Canada, where retirement age dismissals are approached differently. This desktop study used a comparative legal research methodology to analyze statutory provisions, case law, and academic scholarship to evaluate the protections against age-based dismissals in these jurisdictions. According to the findings, South African labour law permits retirement age dismissals if appropriate; they may still be contested as automatically unfair under the Labour Relations Act if they lack a legitimate rationale. In contrast, the USA and Canada impose stricter anti-discrimination measures, making mandatory retirement more difficult to enforce. The study recommends reforms to South African retirement laws to align more closely with international best practices, ensuring greater protection for older workers. This research contributes to the discourse on labour rights and age discrimination, offering insights for policymakers, employers, and legal practitioners on balancing retirement policies with fundamental employment protections.
Keywords: Automatically Unfair Dismissal, Retirement Age, Age Discrimination, Comparative Labor Law
Legislation – South African, USA and Canadian
Labour Relations Act 66 of 1995
Constitution of the Republic of South Africa Act 108 of 1996
Employment Equity Act 55 of 1998
USA
Constitution of the United States, art. 1, sec. 8
Age Discrimination in Employment Act of 1967 (ADEA)
ERISA Act of 1974
Canada
Section 5(1) of the Ontario Human Rights Code
Canadian Human Rights Act (CHRA)
Canada Labour Code (CLC) (R.S.C., 1985, c. L-2)
Old Age Security Act (R.S.C., 1985, c. O-9)
Case Law
South African, USA and Canadian
Solidarity obo Strydom and Others v State Information Technology Agency SOC Ltd (LC) (unreported case no C 148/18; JS 49/18; JS 67/18; JS 68/18; JS 338/18; JS 195/18, 9-5-2022)
Motor Industry Staff Association and Willem Frederick Landman v Great South Autobody CC t/a Great South Panel Beaters (JA68/2021) [2022] ZALAC 103
SATAWU Obo Dube v. Fidelity Super Care Cleaning Services Group (Pty) Ltd
Valla v South African Broadcasting Corporation SOC Ltd (2015) ZALCJHB 17
Standard Bank of South Africa v. SASBO (2018)
Duncanmec (Pty) Ltd v Gaylard NO (2018)
CCMA v Standard Bank of South Africa and Others [2007] ZALC
152.https://doi.org/10.1080/10656219.2019.1593265.
USA
Board of Regents v. Roth (1972)
McKinney v. University of Guelph [1990] 3 SCR 229
Roussy v. Talon (2014 ONSC 7458)
Canada
In Air Canada Pilots Association v. Kelly (2012), [2012] F.C.J. No. 1048
Espey v. Saskatoon (City) Police Service, 2009 SKQB 159
R v. Lifchus, [1997] 3 S.C.R. 320, 1997 CanLII 319 (SCC)
British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, 1999 SCC 48 (commonly referred to as the Meiorin case).
Air Canada Pilots Association v. Kelly et al., 2012 FCA 209, (2012) 434 N.R. 165 (FCA)
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Ntsika Qakaza is a final-year LLB(Hons) student at Walter Sisulu University. Former Peer Assisted, with a keen interest in Labour Law . His academic journey has been driven by a desire to explore the complexities of employment rights. His current research Project, LLB(Hons), titled “Exploring Unfair Dismissal Due to Incapacity in South Africa,” seeks to critically analyze the legal framework surrounding incapacity dismissals and their impact on workers’ rights. Beyond his academic pursuits, Ntsika is an engaged legal volunteer at Mkwini Incorporated Attorneys, where he gains hands-on experience in litigation and client advocacy. His practical exposure complements his theoretical knowledge, allowing him to approach legal issues with both depth and real-world perspective. With a strong commitment to justice and equality, Mr Qakaza aspires to contribute meaningfully to South Africa’s law landscape, ensuring fair treatment for employees while balancing employers’ operational needs. His work reflects a blend of academic rigor, practical insight, and a dedication to social transformation in the legal profession.
Qakaza, Ntsika.“ Exploring Automatically Unfair Dismissals due to “Agreed” or “ Normal” Retirement Age in South Africa,” E-Journal of Humanities, Arts and Social Sciences 6, no. 10 (2025): 2595 – 2604, https://doi.org/10.38159/ehass.202561026
© 2025 The Author(s). Published and Maintained by Noyam Journals. This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).
