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UDD2120

FULL RECOMMENDATION


UD/20/172
ADJ-00024812 CA-00031630-001
DETERMINATION NO. UDD2120

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015


PARTIES :
REVENUE COMISSIONERS
(REPRESENTED BY OFFICE OF REVENUE COMMISSIONERS SOLICITOR)

- AND -

MR PETER ANTHONY MCDERMOTT



DIVISION :

Chairman: Mr Foley
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:

1. Appeal of Adjudication Officer's Decision No.ADJ-00024812 CA-00031630-001

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 13 October 2020 in accordance with Section 8 A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 19 March 2021. The following is the Determination of the Court.


DETERMINATION :

This matter comes before the Court as an appeal by Peter McDermott (the Appellant) of a decision of an Adjudication Officer made in his complaint made under the Unfair Dismissals Act, 1977 (the Act) against his former employer The Revenue Commissioners (the Respondent).

The Adjudication Officer decided that the complaint was not well founded.

The Case

The Appellant was employed by the Respondent from August 2002 until 16th November 2018. On 21st August 2017 the Appellant made application for an extension of service beyond what was referred to in his application as ‘date of normal retirement’. The Appellant reached the age of sixty-five on 16th November 2017.

The application made on 21st August 2017 resulted in a decision to grant the Appellant an extension of twelve months service expiring on 16th November 2018.

Preliminary matter

The Respondent submitted that, without prejudice to its rejection of the complaint on substantive grounds, the Appellant was, by operation of the Act at Section 2(1)(b), excluded from the protections of the Act.

At the hearing of the Court, it was common case that at all material times the normal retirement age for the Claimant was sixty-five.

The Act at Section 2(10(b) makes provision as follows:

  • 2.— (1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:
    • (b) an employee who is dismissed and who, on or before the date of his dismissal, had reached the normal retiring age for employees of the same employer in similar employment or who on that date had not attained the age of 16 years,
The Court heard the parties on all aspects of the appeal but has decided initially to determine the preliminary matter raised by the Respondent because the Court’s decision on this matter has the potential to dispose of the entire matter.

Discussion

Both parties confirmed to the Court that, at all material times, the normal retiring age of the Appellant was sixty-five years of age. The Appellant reached the age of sixty-five on 16th November 2017. The termination of employment which the Appellant contends amounted to an Unfair Dismissal within the meaning of the Act occurred on 16th November 2018.

The Court concludes that, by operation of Section 2(1)(b), the Act does not apply to the termination of the Appellant’s employment on 16th November 2018.

Decision

The Court decides, for reasons outlined above, that the within appeal cannot succeed.

The decision of the Adjudication Officer is affirmed and the within appeal fails.

The Court so decides.


Signed on behalf of the Labour Court
Kevin Foley
CC ______________________
29 March 2021 Chairman


NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.