ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011561
Karen Walsh BL
Brian Leahy Solicitor
Brendan Muldowney Solicitors
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: 13/09/2018
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was employed by the Respondent as a lorry driver in or around 1980.
Neither party could provide a written contract of employment. The Complainant advised that whatever contract was signed in the 1980’s was silent as to the retirement age of the Complainant.
The Respondent’s case is that the Complainant retired in accordance with local and nationally agreed retirement age policy at the age of 66 years.
The Complainant ceased working with the Respondent on the 5th May 2017. He lodged a complaint form with the WRC on the 27th October 2017. He brought a claim for both unfair dismissal under Section 8 of the Unfair Dismissals Act 1977 and discriminatory dismissal under section 77 of the Employment Equality Act 1998. In accordance with Section 101(4)(a) of the Employment Equality Act 1998 the complainant was given the right of election of his complaint / withdrawal of the unfair dismissal claim within a period of 41 days from the 17th November 2017. The Complainant was advised that should he not respond within the 41-day period, his complaint under the Employment Equality Act 1998 was deemed to have been withdrawn and the unfair dismissal claim proceed.
As the Complainant did not reply within the 41-day period, his complaint under the Employment Equality Act 1998 was deemed to have been withdrawn.
Summary of Complainant’s Case:
The Complainant’s case was that the customary retirement age for lorry drivers with the Respondent was 72 years of age. He indicated that he knew several people who had worked beyond the age of 66 years of age.
In 2007 an implementation procedure was put in place by the Respondent called Retirement Policy 2007 in accordance with the Public Service Miscellaneous Provisions Act 2004 and the Local Government Superannuation (Consolidation) Revision Scheme 1998.
The Complainant received a letter dated 12th July 2016. It stated that the Respondent’s Retirement Policy and Procedures were recently updated and approved at a management team meeting. It went on to state that the retirement policy introduced in 2007 was not actively implemented and attached a copy of the updated retirement policy and procedure.
The Complainant made a freedom of information request on the 14th July 2016 and sought a copy of his contract of employment.
On the 7th August 2016, the Complainant again wrote to the Respondent and requested a copy of his contract of employment. He further advised that after a staff meeting was held in April 2006, the finance officer at the time advised him that all outdoor staff could work up to the age of 70 if they wished. The Complainant advised in his letter to the Respondent that he had no plan to retire on his next birthday and wished to continue in employment as a lorry driver.
The Respondent replied to the Complainant on the 16th August 2016 and set out that his retirement age is determined in accordance with the rules of the Superannuation Scheme to which he belonged. The Complainant was identified as a member of the Local Government Superannuation (Consolidation) Scheme 1998 and was classified as a non-new entrant. The letter confirmed that while the Scheme did not specify a compulsory retirement age, agreed policy applied and provided for a compulsory retirement age of 66 to coincide with the Social Welfare Old Age pension age. The letter went on to state that there was no option for the Complainant to remain in employment beyond his 66th birthday and that he was to retire with maximum pension entitlements on the 6th May 2017.
The Complainant was forced to retire on the 5th May 2017.
Since his retirement, the Respondent didn’t actively seek a replacement job. He did some work driving children on school tours. He also worked four nights for a local bakery but gave up that job as it didn’t suit him.
The Complainant relied on the High Court case of Quigley -v- Health Service Executive  29 E.L.R. 69 in support of his claim.
Summary of Respondent’s Case:
The factual events of the case were agreed by the Respondent.
The Respondent relied on the exclusions to the Unfair Dismissals Act 1977 set out in Section 2(1)(b) of the Act which set out
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.
The Respondent submitted that as the Complainant retired in accordance with the normal and agreed retirement age for employees in its employment, the Act didn’t apply and the dismissal by way of retirement was not unfair.
The Respondent classified the Complainant as an outdoor worker and set out that his terms and conditions of employment were in accordance with the national agreement in respect of this grade within the sector. The Respondent referred to the legislation for the sector dating back to 1998 and an agreement with the group of Unions representing General Operatives and related grades whereby outdoor workers have an agreed retirement age of 66 years and that this was nationally recognised in the sector.
The Respondent acknowledged that during 1998 to 2006, a small number of employees (9 in total) remained in employment after the accepted and recognised retirement age for outdoor employees. To address this, the Respondent circulated a copy of its retirement policy and re-established its own and the sectoral policy with the requirement of outdoor employees to retire at age 66.
The Respondent formally wrote to the Complainant on the 18th December 2006 and enclosed a copy of its retirement policy. The Respondent submitted that this put the Complainant on notice of his retirement at the age of 66.
The Respondent accepted that prior to 2008 many employees had been permitted to remain in employment past the established retirement age of 66, however since the re-establishment of the retirement policy in 2006 and with the agreement of the employee unions, the retirement policy has been strictly adhered to.
The Respondent went on to state that between 2009 – 2018 a total of 85 employees retired from the Respondent. All the 85 retired at 66 years or below. The situation is different for New Entrants defined by the Public Service Superannuation (Miscellaneous Provisions) Act 2004.
The Respondent’s case was that at all material times, the Complainant’s retirement age was established. It submitted that his retirement resulted from his contractual position and relevant statutory provisions and policies.
Findings and Conclusions:
For the reasons set out in the introduction, this case was brought under the Unfair Dismissals Act.
The Respondent raised a substantial preliminary matter into my jurisdiction to make a determination under Section 8 of the Unfair Dismissals Act 1977.
Section 2(1)(b) of the Unfair Dismissal Act 1977, as amended by Unfair Dismissals (Amendment) Act 1993 provides that the Act will not apply to:
“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 …”
I am required to determine the normal retiring age of the Complainant at the date of termination of his employment. The Complainant’s contract of employment was unavailable to me and to ascertain the Complainant’s normal retirement age, I must look at ancillary documents such as the Respondent’s retirement policy, the correspondence between the parties and any agreements made with the worker’s unions.
The Complainant submitted that the age of 65 was not the normal retiring age for outdoor staff and that custom and practice was to work on as a lorry driver until 70 years of age. The Complainant called just one witness, a co-worker who had retired in 2008 aged 68. He also referred in his evidence to a co-worker CM who worked beyond 66 years of age. However, the Respondent confirmed that this man was a new entrant since 2004.
The Respondent referred me to the case of Molloy v Connaught Gold Co-Operative Society Limited (UD891/2009). In that case, the respondent's normal retirement age was 65 which was provided for in the form of custom and practice within the group, agreement with the trade unions (not in writing) and the terms and conditions of a widely used pension scheme. Although there were some limited exceptions, the respondent provided that the bulk of employees left at the normal retirement age. The complainant disputed her compulsory retirement at age 65 on the basis that she was never given any written documentation stipulating the compulsory retiring age of 65, and, as such, there was no compulsory retirement age existing in the organisation. The EAT in its determination considered s.2(1)(b) of the Unfair Dismissals Acts 1977 to 2007 (the “Unfair Dismissals Acts”). It held that despite the position in Kiernan v Iarnrod Eireann (UD974/94) the Unfair Dismissals Acts do not require normal retirement age to be shown by way of a written contract, or other written notification and therefore the evidence must be examined to see whether “ normal” retirement age had been established. The EAT was satisfied that it had been established in that case and dismissed the claim.
In the case of An Employee v An Employer (UD2200/2009) the respondent had previously allowed employees to work beyond the age of 65; however, in July 2008, due to the downturn in the economy, the company policy on retirement was changed, in agreement with Union representatives. When the employee commenced employment in 2000 he signed and accepted his terms and conditions of employment, in which he agreed to be bound and accept the terms of any agreements and procedures negotiated between SIPTU and the company on his behalf. He was also furnished with a staff handbook which specified a retirement age of 65. The EAT held that the respondent was entitled to terminate the claimant's employment as he had reached retirement age as per his written employment agreement. They held that the fact that the employer had allowed employees in the past to work beyond the age of 65 years does not now prevent the employer from enforcing what is clearly stated in the employment agreement. In those circumstances, the EAT determined that the claimant's claim under the Unfair Dismissals Acts and the Redundancy Payments Acts 1967 to 2007 failed.
I reviewed Quigley -v- HSE  29 E.L.R. 69 and note that this case was brought under the Employment Equality legislation and not directly applicable to this case.
I accept the submissions made by the Respondent’s representatives in relation to the introduction of the Respondent’s retirement policy, the correspondence between the parties and the historical retirements of workers beyond the age of 66.
The Complainant was notified on a number of occasions as to his retirement age and I accept that it has been established at 66 years of age for non – new entrants such as the Complainant was.
As the Complainant had reached normal retiring age, the exclusion of Section 2(1)(b) of the Unfair Dismissals Act 1977 applies and I have no jurisdiction to adjudicate on this case.
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.
I do not have jurisdiction to hear this case. The case is not well founded.
Dated: January 2nd 2019
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Normal retirement age