Zambia’s Attorney General has clarified that the retirement age for public service workers remain 60 years with an exercisable option of retiring early at 55 years while late retirement can be had at 65 subject to the consent of the employer.
In an advisory to the public service, Likando Kalaluka stated that the recent Konkola Copper Mines PLC case decided by the Court of Appeal in 2018 must be understood within the context in which it was litigated as it involved an issue of parties who had signed a contract of employment which provided for retirement age.
The Attorney General said employees in the public service do not sign any contract that contain a clause on the retirement age and that retirement age is regulated by statute.
In summary, the Konkola Copper Mines case does not apply to employees who have not signed contracts with retrenched or retirement age of 55 years. Public service employees’ retirement age has always been set by statute and will continue to be set by Statute as and when amended.
In a commentary on this position, legal commentator Isaac Mwanza said what would be relevant to consider when dealing with the statute’s application is which date should be considered, whether the date of employment or termination of employment. If it’s the latter, then there is no retrospective effect since the law to be applied will be that existing at the time of termination.
Mr. Mwanza noted that in the case to do with terminating an employment by giving a reason involving Spectra Oil Zambia Limited case decided in 2018, the Court of Appeal used the date of termination despite the employee having been employed in 2012.
“These is no authoritative date to pick in determining this matter and that is why the Supreme Court needs to clean up the Konkola Copper Mines case. Relying on the obiter dictum by the Court of Appeal that the amendment had retrospective effect is problematic on its own.”
Mr. Mwanza said if the consideration is about the date of termination, the issue of retrospectivity does not arise. It is simply the issue of applying the existing law. The effect of this would entail that Konkola was wrongly decided as it was based on the date of the contract as opposed to the date of termination when the law on retirement age had since changed.