ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00004223
Patrick Jones ( Solicitor)
Sarah Hearn’s (Representative)
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 18/04/2017
Workplace Relations Commission Adjudication Officer: John Walsh
Location of Hearing: The Mullingar Park Hotel
Under Section 8(1B) of the Unfair Dismissals Act 1977, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the Parties an opportunity to be heard and to present to me any evidence relevant to the complaints.
The Complainant commenced employment with the employer on 20 November 2000 as an Assistant Planner. He was subsequently employed as an Executive Engineer from the 30 July 2002 and remained in that role until his retirement in March 2016. He alleges that he was unfairly dismissed by the Respondent when he wished to withdraw is resignation on 3 March 2016. He filed a complaint with the Workplace Relations Commission on 9 June 2016.
Summary of Respondent’s Case:
The Complainant issued formal notification to his employer of his intention to retire by letter on 16 December 2015 and that the only issue that arose in relation to the Complaint’s retirement concerned the actual date of retirement. There was not ambiguity with regard to the Complainant’s intentions to retire based on the text of his initial and subsequent seven communications in relation to his retirement date.
In all of the applications made by him to modify his retirement date, he never sought to stay in employment for any great length following the date of his retirement initially notified. In fact, following his actual retirement date, the alternative date proposed by him did not go beyond April 2016.
The Complainant sought to amend the retirement date formally advised by him to the employer in his letter of 16 December 2015 on six occasions. In fact there were a total of seven different retirement dates formally advised.
The initial letter of Complainant’s intentions to retire was dated 16 December 2015 and indicated that “I shall be retiring from my position on 4 February 2016.”
Letter dated 22 December 2015 Retirement date: 11 February 2016
Letter dated 4 January 2016 Retirement date: 21 February 2016
Letter dated 18 January 201 Retirement date: 28 February 2016
Letter dated 18 January 2016 Retirement date: 29 February 2016
Letter dated 2 February 2016 Retirement date: 4 March 2016
Letter dated 9 February 2016 Retirement date: 17 March 2016
Letter dated 12 February 2016 Retirement date: 17 March 2016
Following receipt of each letter/email the necessary administration work in relation to pension and lump sum calculations, annual leave entitlements and formal processing to effect retirement was undertaken by both the HR and Finance sections. After the third request for revision was received the Senior Executive Officer (SEO) for HR emailed the Complainant’s Line Manager on 21 January 2016 outlining that it was proposed Complainant would be advised that the CE’s Order accepting his retirement date would be prepared and signed within the following two weeks and that once the CE’s Order was signed the processing of lump sum and pension payment would be progressed. The Complainant’s Line Manager confirmed by email to the SEO HR on 21 January 2016 that he had spoken to Complainant who confirmed there would be no further changes to his retirement date.
Subsequent to this and as reflected above a fourth letter with same date as the third letter was submitted by the complainant however, this fourth letter requested a further different retirement date.
The necessary administrative arrangements to effect the retirement were put in place with CE order prepared and signed. The Complainant was formally advised on this by HR letter dated 1 February 2016.
On the following date 2 February 2016 an email was submitted by the Complainant to this Line Manager regarding his retirement and indicting he wished to start his retirement on Friday 4 March stating that “it was an old custom to start something new on a Friday”. This was the sixth different retirement date indicated by the Complainant and the sixth occasion on which discussions were held with his Line Manager and significant administrative work undertaken. Nevertheless, the Deputy CE indicated her willingness to rescind and revoke the CE Order subject to receipt of formal letter from the Complainant requesting this further change to his retirement date and subject to his formal confirmation that this was the final revision to his retirement date.
The Deputy CE’s decision was communicated to the Complainant by his Line Manager and he submitted letter dated 9 February 2016 to the Deputy CE indicating his request to have a modification to his retirement date from 29 February to 17 March and indicated that he would “retire from his position on 17 March 2016”. This was followed up by the Complainant with a further letter to the Deputy EC referring to his earlier letter of 9 February and stating that he “would very much wish that his retirement date by modified to 17 March 2016,” and that this was his final letter regarding modifications to his retirement date and I hope my request is considered favourably”.
The Deputy CE Order accepting the Complainant’s resignation and revoking the earlier order was signed on 12 February 2016.
The Complainant submitted a further letter dated 15 February referring to his previous correspondence where he sought to “regretfully request if the date of his retirement could be changed to 31 March 2016”. The Deputy CE formally responded by letter dated 17 February 2016 indicating as follows:
“Based on the clear understanding that your final revised retirement date was 17 March 2016, I made the necessary arrangement to rescind the earlier signed Deputy CE’s Order. A new Order was prepared and signed on 12 February 2016 and the necessary administrative formalities in relation to your retirement were put in train. Therefore no further revision to the Deputy CE Order will be made.”
The Complainant submitted a further letter to the Deputy CE dated 3 March 2016 in relation to his retirement, referring to her correspondence on the 16 February 2016 and stated “I wish to withdraw my letter of resignation if it is possible at this late stage because I am not in a position to retire from my position at present.”
A meeting took place on the 7 March 2016 in response to his letter dated 3 March 2016.
It is worth noting the full extent of discussions at the meeting between the Deputy CE and the Complainant which is outlined her3eunder in an email dated 7 March 2016 from the Deputy CE as follows:
“I met with J this morning and spoke to him about his most recent letter dated 3 March 2016. J confirmed that he had sent the letter withdrawing his letter of resignation as he was embarrassed about the number of times he had changed his mind about his retirement date. He also indicated that he now wished to retire in April.
J confirmed that, for personal reasons, he needed to change dates previously but that these issues were now resolved. He also indicated that he was aware of the impact this was having on work colleagues and the additional work required by HR and Finance but that he was not ready for retirement.
I asked did he really want to retire and he said yes, he is now ready. I asked what the difference would be for him – retiring in March or in April. J couldn’t give me a reason. I asked if there was a likelihood of him changing his mind again. He said no. I explained that I was concerned that, as he had sent letters confirming that he had decided on a final retirement date but he subsequently changed his mind, he wasn’t ready or prepared for retirement. He again confirmed that he was now ready to retire.
I asked J what the impact would be for him if I didn’t accept his letter. He said that he would retire next week. I asked if there were any issues that would impact on him personally by not changing the date. He said no but he would be happier in himself.
I explained to J that I would need to check some details and think about our conversation and that I would get back to him this afternoon. I have just confirmed to J, by phone call, that I am not changing the Order. He confirmed that this was ok with him. I asked him to speak to T in relation to holidays, logistics etc. “
This position was formally confirmed to the Complainant by Deputy EC’s letter dated 9 March 2016. The formal Finance Order in relation to processing of Complainant’s pension and lump sum was signed on 15 March and this was formally confirmed to the Complainant by the Head of Finance by letter dated 16 March 2016.
The Complainant’s own written statement fails to outline the extensive communications and discussions which preceded his retirement between 16 December 2015 and 17 March 2016.
The definition of dismissal under Section 1 of the Unfair Dismissals Act 1977 as amended provides for the “termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee”.
It was never in prospect that the employer would issue notice as all instructions in relation to the Complainant’s retirement came from him. In relation to retirement generally, there is no fixed formal notice period on the basis that the employment simply terminates through an agreed contractual arrangement whereby an employee must retire on reaching a mandatory retirement age or where an employee voluntarily opts to retire earlier in accordance with relevant provision of the superannuation scheme. Therefore, no dismissal exists for the purposes of the Unfair Dismissals Acts. The retirement of the Complainant was neither a dismissal, nor was it unfair; it was simply a voluntary choice by the Complainant to retire from his employment. Case-law only deals with this matter where, in constructive dismissal cases, an employee exercised his or her right to resign in haste from their employment. In those circumstances it would be incumbent on an employer to establish whether or not the employee actually meant to resign and to take appropriate steps. It is clear from the foregoing that notwithstanding the number of letters of resignation received and in advance of any CE order being signed the Complainant was afforded significant consultation, engagement and amendments to his retirement date up to and including the rescinding of the initial CE’s order.
The employer cannot accept that anything in this case can be construed as being unfair to the Complainant. It was always open to the Complainant to seek advice, and in fact he did so. His proposed retirement was never in question. Any queries in relation to his retirement were fully addressed by the employer at every stage, including meetings with him to discuss his retirement date. The Complainant did not provide details of any significant personal matter or event that may have led him to seek a substantial further change to his retirement date in any of the correspondence or discussions with his Line Managers or at meetings with the CE on 7 March 2016 in advance of this retirement.
There was no formal response received from the Complainant to the communication issued to him in relation to his retirement date (letter dated 9 March 2016 from the Deputy CE and letter from the Head of Finance on the 16 March 2016).
The formal letter received from the Complainant’s solicitor stating that the Complainant “does not wish to terminate his employment with his employer” was received by the employer on 23 March after the Complainant’s retirement with award of lump sum and pension payment made and lump sum payments made to Complainant’s bank account on 17 March 2016.
In the event that the Complainant had provided details of any significant personal matter or event which may have led him to seek a substantial change to his retirement date it is likely that this could have been considered and possibly accommodated but no such detail was provided at any stage by the Complainant.
There is no provision in the Superannuation scheme whereby an employee who tenders their resignation and is awarded lump sum and pension with their name consequentially removed from the Superannuation Register, can reverse their decision to retire.
Summary of Complainant’s Case:
The Complainant’s representative outlined the following submission:
The Complainant has no qualification in law and accordingly lacked the relevant knowledge to make a life changing decision about giving up his employment five years early.
The Complainant submitted a notification of intention to retire, but shortly after doing so communicated with his employer by way of letter, dated 3 March 2016, his uncertainty and reservation about his decision and a desire to withdraw his request for early retirement.
On the 7 March 2016 the Respondent met with the Complainant to discuss the contents of his letter dated 3 March 2016. He was told that the decision that he had made was irreversible and he was told that any extension of the termination date would not be permitted. The Complainant spoke to the Director of Services on 9 March 2016, and informed him that he was not satisfied in the decision of the Acting CE at the meeting. He was informed that his Director of Services would make representation on his behalf. The Respondent was unreasonable in failing to follow long established practice and terminating the Complainant’s employment after he had changed his mind.
At no time was the Complainant advised to obtain legal advice to establish his contractual rights or to make an informed legal decision regarding his termination otherwise of his employment.
The Respondent in its failure to ensure that the Complainant obtained independent legal advice did not act reasonably towards a longstanding and well respected executive employee.
The Complainant would have been in a position to reverse his decision when he sought to do so prior to his date of departure but was advised otherwise by the employer.
The employer in advising the Complainant that he could not change his decision prior to his departure date did not act reasonably towards a longstanding well respected executive employee.
The employer in its refusal to reinstate the Complainant’s employment following receipt of a letter from his solicitors on the 22 March 2016 did not act reasonably towards a long standing and well respected executive employee.
The Complainant is currently at a loss of €15,000.00 per annum arising out of the decision that he made, which he immediately became aware was the wrong decision, and which he communicated in writing to his employer that he wished to reverse.
There is a long established understanding/accepted practice that an employee can change his/her mind which understanding/accepted practice was unreasonably disregarded in the Complainant’s case.
The Complainant impetuously submitted an application for termination of his employment at a time of stress. He regretted his decision and quite reasonably requested and expected to withdraw his application, which was unreasonably refused.
A following is a summary submission made by the Complainant:
Following his letter of the 3 March 2016 to his employer, requesting withdrawal of this resignation, he met with the Deputy CE on the 7 March 2016. He attended the meeting without a representative. If he had known prior to this meeting that he had a privilege/right under his employment contract to change his mind and withdraw his resignation, he would have done so, particularly in circumstances where what he had planned was not feasible. He would have told the CE clearly at the start of the meeting that he wished to withdraw his resignation and be believed that she would have accepted it.
The CE emphasised the fact that he was permitted to change the date of his retirement from the 29 February 2016 to 17 March 2016 on the understanding that this was the final date for his retirement and that the calculations for his pension had been completed and sent to the employer. He understood from this confirmation that the employer would not be permitting him to withdraw his resignation. Instead of being assertive and telling her that he had changed his mind and did not wish to retire he panicked to some extent and then requested her if it would be possible to extend his employment for another 4 weeks. If he had been aware that there were protections under the employment legislation he would not have asked for a revision of his retirement date for 4 weeks but would have asked to withdraw his resignation. In response of his request for a revision of this retirement date, the CE advised him that she would consider his request and would phone him back in the afternoon. She called him back in the afternoon and advised him that it was not possible to extent his retirement for a further 4 weeks. He should not have agreed to this.
On 9 March 2016 he met with Mr. JB, Director of Services and explained to him that the meeting with the Deputy CE did not go well and that he did not convey the message that he wished to withdraw his resignation and that he wished to continue in employment. On the 11 March 2016 he received a letter from the Deputy CE from which he understood that it would not be possible to withdraw his resignation. The employer’s intranet service was out of order on the 14 and 15 March 2016 due to upgrading and was not possible for him to reply by email. He should have went to the Deputy CE again and explained to her that he did not wish to revise his retirement date, but to withdraw his request to resign. He believes that she wold have accepted his position if he had clearly outlined his reasons for doing so then.
On 18 March 2016 he phoned Mr. JB and asked him if he could help. He told him that he wished to have a meeting with the CE as he wanted to returned the lump sum payment and continue in his employment. He told him that that it was foolish in his circumstance for him to have suggested taking early retirement because he always liked working for the employer. He also told him that he had a big mortgage taken out from the bank for the purchase of a house in 2007.
The JB advised him that he was not dealing with the matter of his retirement and perhaps he should talk to a solicitor.
Findings and Conclusions:
Based on the evidence presented by both parties at the hearing I find as follows:
The Complainant formally notified his employer of his intention to retire and formally requested several amendments to his retirement date. The employer accommodated the Complainant in relation to changes to his retirement date on seven occasions.
The Complainant in his letter of 3 March 2016 indicates that he wished to withdraw his letter of resignation. He met with the Respondent on 7 March 2016, but at this meeting he clearly indicated that he did wish to retire. He did not outline any reasons to the Respondent as to why he should not retire. In fact, he confirmed that he was now ready. If the Complainant had issues or problems in relation to retiring, he should clearly have outlined what those problems were well in advance of his retirement date. He failed to do so. The Complainant worked as a professional engineer with the Respondent and it was always open to him to seek advice prior to him making the decision to retire.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Based on the evidence presented at the hearing I find that this complaint is not well-founded and therefore fails.
There is no doubt with regards to the Complainant’s intention to retire based on the evidence submitted at the hearing. The Respondent accepted his resignation letters. The retirement of the Complainant was neither a dismissal nor was it unfair; it was simply a voluntary choice of the Complainant to retire from his employment. Therefore no dismissal exists for the purposes of the Unfair Dismissals Act 1977.
Dated: 14th June 2017
Workplace Relations Commission Adjudication Officer: John Walsh