This
is an appeal against the entire judgment of the Labour Court handed
down on 13 November 2015. In that judgment, the court a
quo
dismissed an application for review brought by the appellant against
the decision by the respondent summarily retiring him from employment
at age sixty (60).
Aggrieved
by the decision, the appellant raised six (6) grounds of appeal.
These grounds of appeal raise three main issues as follows:
1.
Whether the appellant's retirement age from employment was sixty
(60) or was sixty-five (65) years;
2.
Whether or not the summary retirement of the appellant at sixty (60)
years was, in essence, a retrenchment; and
3.
Whether the respondent discriminated against the appellant in
retiring him at sixty (60) years when other employees were allowed to
retire beyond that age.
THE
FACTS
The
facts giving rise to this dispute are largely common cause. I set
them out hereunder.
The
appellant was employed by the respondent in 1981 as a Junior Treasury
Officer. It was a specific term of his contract of employment that
his conditions of service would be governed by the provisions of the
Industrial Agreement Salisbury Municipal Undertaking: General
Conditions of Service Agreement contained in S.I.147 of 1981. That
statutory instrument provided, in section 19 thereof, that the normal
age of retirement of an employee would be sixty-five (65) years.
Statutory
Instrument 147 of 1981 was repealed and replaced by various
subsequent statutory instruments. These subsequent instruments were
all Collective Bargaining Agreements between the respondent and its
employees providing for one or more aspects of conditions of service.
In
particular, and of relevance to this appeal, S.I.135 of 2012 reduced
the normal retirement age for the respondent's employees from
sixty-five (65) to sixty (60) years.
In
addition to the various Collective Bargaining Agreements governing
their conditions of service, the parties also contributed to the
Local Authorities Pension Fund which had its own regulations. These
regulations provided for various ages of retirement from the fund by
contributors, ranging from fifty-five (55) to sixty-five (65) years,
and effectively mirrored the retirement ages provided for in S.I.135
of 2012.
It
is not in dispute that the appellant was a member and contributed to
this pension fund.
On
18 March 2014, the respondent wrote to the appellant, advising him
that he had reached normal retirement age and was being retired with
immediate effect. The appellant approached the court a
quo,
on
review, contending that the actions of the respondent were unlawful
and that he had a legitimate expectation to be retired at sixty-five
(65).
The
application was opposed with the respondent arguing that the
appellant had attained the normal retirement age in line with the
provisions of the governing Collective Bargaining Agreement in force
(i.e. S.I.135/2012) and the regulations of the Pension Fund.
THE
ISSUE
The
issue between the parties, before the court a
quo
was therefore a crisp one. It was whether or not the decision by the
respondent to retire the appellant at age sixty (60), as fixed by the
Collective Bargaining Agreement and the Pension Fund, was lawful.
THE
DECISION OF THE COURT A QUO
In
holding that the decision by the respondent to retire the appellant
at sixty (60) was lawful, the court
a
quo
found that whereas there had been many changes to the various
Collective Bargaining Agreements governing the conditions of service
of the Harare City Undertaking, the provisions of the pension
regulations had remained constant and these are what the respondent
resorted to in summarily retiring the appellant. The court a
quo
then proceeded to find that because the appellant had not “told”
the court that he was not a contributor to the pension fund, his
retirement was governed by the scheme.
Was
the appellant's age of retirement from employment fixed by the
pension fund regulations?
I
think not.
THE
LAW
The
legal position presents itself clearly to me that the regulations of
any pension fund do not fix the age at which the employee will retire
from employment unless, expressly or impliedly, the employer and the
employee agree that this be so.
The
setting up and administration of pension funds in this jurisdiction
is governed by the provisions of the Pensions and Provident Funds Act
[Chapter
24.09].
The Act provides for pension and provident funds to make their own
rules or regulations.
It
is trite that the rules and/or regulations of a pension fund,
provided for in section 7 of
the Pensions and Provident Funds Act [Chapter
24.09],
invariably fix the age at which contributors retire from making
contributions to the fund. The Local Authorities Pension Fund, the
fund in issue in this appeal, did. This age is also referred to as
the retirement age. The Act, however, clearly provides that such an
age may be attained with or without the termination of employment.
I
therefore read the Pensions
and Provident Funds Act [Chapter
24.09],
in this regard, as providing that one may be regarded as having
retired, for the purposes of the Act, and, therefore, eligible to
receive a pension, without necessarily having retired from
employment. In other words, retiring from the pension fund does not
always mark an employee's retirement from employment.
The
two retirements can occur on different dates.
Thus,
in my view, one may clearly and lawfully attain retirement age for
the purposes of the Pensions
and Provident Funds Act [Chapter
24.09]
whilst still in employment. Whilst my understanding of the law in
this regard is not directly relevant to the facts of this appeal, in
my view, it underscores the clear legal position that the retirement
age fixed by the pension scheme is not, in the absence of consent by
both parties to that effect, necessarily the same age at which one
must retire from employment.
Where,
therefore, the employer intends to apply the retirement age that is
fixed by the pension fund for the purposes of retiring employees from
employment, it must import this age, with the consent of the
employees, into the conditions of service.
In
casu,
the respondent, perchance, being alive to this legal requirement,
aligned the retirement age of the rest of its employees to the age
fixed by the pension fund by way of S.I.135 of 2012.
It
is not in dispute that S.I.135 of 2012 is inapplicable to the
appellant by reason of his position. The statutory instrument applies
to all employees in Grades 16 to 5. It therefore expressly excludes
persons employed in Grades 1 to 4. The appellant is employed in a
Grade 2 position.
The
court a
quo
correctly found that the statutory instrument does not apply to the
appellant. It however erroneously proceeded to find that the
retirement age, as fixed by the pension scheme regulations, then
becomes applicable. As discussed above, the regulations of the
pension fund, not being an agreement between the employer and the
employee, cannot fix the employee's retirement age from employment.
It
is therefore my finding that mere membership of a pension fund,
without other evidence tending to show that the parties agreed to
import the retirement age, as fixed by the pension scheme, into the
contract of employment, is not adequate basis for holding that the
age of retirement, as fixed by the pension fund, is the same as the
age of retirement from employment.
With
respect, it does not appear that the court a
quo
was alive to the need to first find that there was agreement between
the parties that the age of retirement, as fixed by the pension fund,
would be the age of retirement from employment. The court appears to
have proceeded on the basis that retirement from the pension fund is
synonymous with retirement from employment. Thus, the court a
quo
did not search for any evidence tending to show that there was such
an agreement between the parties.
There
is no such evidence on record.
In
disposing of the matter as it did, the court purported to rely on the
decision of this Court in the matter of Athol
Evans Hospital Home v Monica Maruta
SC66-05. Such reliance is, with respect, an incorrect reading of the
ratio
decidendi
in the case.
In
the Athol
Evans Hospital Home v Monica Maruta
SC66-05 case, the respondent and the appellant were contributors to a
pension scheme, the Southampton Scheme, that set the retirement age
at sixty (60) years. The retirement age set by the pension scheme was
consistent with the National Security Social Authority Scheme (NSSA
Scheme) retirement age at the time. The National Social Security
Authority Scheme (NSSA Scheme) retirement was subsequently amended
to sixty-five (65) years. When retired at sixty (60), the respondent
challenged her retirement at that age, alleging that she should have
been given an option to elect to retire at sixty-five (65) in terms
of the National Social Security Authority Scheme (NSSA Scheme).
Quite
clearly, the respondent in the Athol
Evans Hospital Home v Monica Maruta
SC66-05 case did not challenge the applicability of the retirement
age as fixed by the Southampton Scheme to her. She was of the view
that she should have been given an opportunity to agree to be bound
by the National Social Security Authority Scheme (NSSA Scheme)
instead.
It
was in rejecting that contention that this Court held that the
respondent had made her election to join the Southampton Scheme in
terms of which she was retired as the two schemes were in operation
at the time she made the election. In the passage cited by the court
a
quo
in its judgment, this Court held that by joining the Southampton
Scheme, the respondent accepted to retire at the age of sixty (60).
The
Athol
Evans Hospital Home v Monica Maruta
SC66-05 case is clearly not authority for the proposition that the
regulations of a pension scheme, in the absence of express or implied
agreement of the parties to that effect, will fix the retirement age
from employment. The case was simply decided on the employee's
election to be bound by one and not the other of the two schemes that
operated at the same time. I read the judgment as taking it as
understood that both parties had agreed to the retirement age fixed
by the Southampton Scheme. The changes introduced by the National
Social Security Authority Scheme (NSSA Scheme) later were of no
moment as the parties had not agreed to be bound by those later
changes expressly or impliedly.
Having
found that the respondent failed to show that it had acted lawfully
in retiring the appellant at sixty (60), the court a
quo
erred in dismissing the appellant's review application.
The
first issue raised by the appellant's grounds of appeal must be
answered in favour of the appellant. There is no basis upon which the
respondent retired the appellant at sixty (60). It was neither a
specific term of the contract of employment between the parties nor a
provision of any Collective Bargaining Agreement that applied to him.
The
first ground of appeal is with merit and must be upheld. In view of
that finding, it becomes unnecessary to deal with the other grounds
of appeal giving rise to the second and third issues….,.
In
the result, I make the following order:
1.
The appeal is allowed with costs.
2.
The judgment of the court a
quo
is hereby set aside and substituted with the following:
“(a)
The application for review is granted with costs.
(b)
The decision of the respondent to summarily retire the applicant at
60 is hereby set aside.”
