Complainant

Respondent

Parties

Brian  Cunningham

Limerick Island Community Partners (Company Limited By Guarantee)

Representatives

Victoria Stephens, SIPTU

William Wall and Peter Dunlea, Peninsula

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00060538-001

14/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00060538-003

14/12/2023

The Complainant commenced his employment in 1998 and became an employee of the Respondent as a result of a transfer of undertakings.  At the time of the termination of his employment, the Complainant was paid €780.90 gross per week.

The Complainant alleges that he was dismissed contrary to the Unfair Dismissal Act 1977 as amended. He further alleges that the Respondent failed to give him appropriate notice in accordance with the Minimum Notice and Terms of Employment Act 1973 as amended.

The Respondent rejects the claims.

Introduction

Limerick Island Community Partners is a community voluntary sector company limited by guarantee, based in Limerick city providing services, supports and social enterprises to St. Mary Parish and Limerick city.

The Complainant was employed since November 1998. He was employed as an Estate Management worker. During the course of his employment he was a subject to a number of transfers of undertakings.

The Respondent wholly denies that the dismissal of the Complainant was unfair.

Background

The Complainant was employed for a period of 25 years. Through a number of transfers under the Regulations of 2003 during that period, the Complainant became an employee of the Respondent.

The Complainant’s contract of 2008 was updated in 2013. The Complainant failed to sign said agreement but relied upon the contract for his rate of pay.

At that time the Respondent gave notice that the contract of employment would expire on the event of the Complainant reaching the age of 65. The Complainant did not engage with the Respondent on this matter.

The Respondent was not in a position financially to support any worker as they are supported by the State and so upon the Complainant reaching the age of 65 in 2023, he was informed that the contract would reach its conclusion.

Mr Patrick Kennedy, Manager met with the Complainant on 8 March 2023 and gave notice of the company’s retirement age.

Mr Kennedy expressed his view to the Complainant in writing on 8 March 2023 that the Complainant could make a submission to the Respondent’s board in relation to his retirement at that time. The Complainant decided not to do so.

As such the termination of employment was finalised on 15 July 2023.

Legal Submission

The Respondent refers to the Act of 1977 wherein states “dismissal”, in relation to an employee, means

(a)    the termination by his employer of the employees contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

Exclusions

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:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,

(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,

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The Respondent submits, having regard to the above, that the Complainant’s employment ended on his 65th birthday as previously advised and, in such circumstances, the contract came to an end.

The Respondent in support of their position refers to Margaret Doyle v Kylemore House Nursing Home Ltd. ADJ-00048716where the complainant passed the normal retirement age within the respondent’s employment and was afforded a number of short-term contracts upon consultation with the respondent. The Adjudication Officer in that case found that the Unfair Dismissals Act 1977 was not applicable due to the complainant reaching the normal retirement age of the respondent’s employment.

As in the instant case, the Respondent on 8 March 2023 discussed the Complainant reaching the retirement age and asked if the Complainant wished to make a submission in regard to remaining on in the employment. He failed or neglected to do so whereby his employment ended due to him reaching the normal retirement age of the Respondent.

Mitigation of Loss

Should the Adjudication Officer decide that the Complainant was unfairly dismissed, which the Respondent wholly denies, it is for Complainant to provide evidence of his attempts to mitigate his loss. In those circumstances the Respondent refers to the standard set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd. UD858/1999 that a

‘claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.’

Similar views were expressed by the Labour Court in Smith v Leddy UDD74/2019 where it was said that the Court expected to see ‘evidence that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment’.

The Respondent submits that it is a matter for the Complainant to show how he has made efforts to mitigate his loss. In that sense, the Respondent refers to Phillip Smith v Mark Leddy UD/19/76 where the Labour Court stated the following

‘The Court expects to see evidence that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment.’

The Respondent also refers to Harry O’Donovan & Maura Kearin t/a Kingdom Cleaners v Dylan Brennan UDD2438 where the Court affirming the constructive dismissal reduced the award made by the Adjudication Officer from €11,817.00 to €2,275 due to the “minimalist” efforts made by the complaint in seeking employment following the dismissal.

The Respondent submits that the Complainant has failed to mitigate his losses in accordance with section 7(2) of the Act of 1977.

Conclusion

The Respondent submits that it has not unfairly dismissed the Complainant. No dismissal took place and the Complainant reached the normal retirement age within the Respondent’s employment.

At the adjudication hearing, the Respondent emphasised that the Complainant’s dedication was never disputed. However, the Respondent followed policies and procedures.

Summary of direct evidence and cross-examination of Mr Pat Kennedy, Manager

Mr Kennedy said that he had a meeting with the Complainant on 6 March 2023 when he told the Complainant that his 65th birthday was approaching, and that the Respondent’s policy was to retire employees at 65 years of age.

Mr Kennedy gave evidence that the Complainant said at that time that the State retirement age was 66 and what the Respondent was doing was illegal. Mr Kennedy replied that he was not aware of that. He reiterated that the Respondent’s policy was to retire its staff at 65 years of age. Mr Kennedy said that another person, an accountant retired around that time at the age of 65.

Mr Kennedy said that he sent an email to the Complainant on 8 March 2023 in which he stated that the Respondent’s position was that the Complainant was due to retire on his 65th birthday. Mr Kennedy noted in the email that the Complainant did not sign the LICP contract but opted to work under the existing St. Mary’s Aid contract dated 1 January 2013. He made reference to section 22. Mr Kennedy further advised the Complainant to look at the section headed Retirement in the LICP contract in the event that the Complainant wished to make an application for longer working.

Mr Kennedy said that he was not with the Respondent in 2013.

Mr Kennedy said that he was instructed by the Board that the retirement age was 65.

Mr Kennedy said that he spoke with the Complainant on 12 July 2023 after the Complainant queried his wages. Mr Kennedy said that he explained to the Complainant that his holiday pay was included as his understanding was that the Complainant was due to retire, as previously advised. Mr Kennedy told the Complainant that his instructions came from the HR Committee.

Mr Kennedy said that he received a letter from the Complainant afterwards querying the retirement age but there was no submission to extend his contract.

Mr Kennedy said that when he reached the age of 65 years, he made a submission to the Board and stayed with the Respondent on a project on 3 days a week basis.

Mr Kennedy said that there was a group of individuals on job initiatives whose retirement age was 66, but they were a separate category. However, all other staff retired at 65.

In cross-examination, Mr Kennedy said that the Complainant was not shocked when the matter of retirement was raised with him on 6 March 2023.

Mr Kennedy said that the Respondent set up an independent HR group to hold meetings with staff individually to discuss their contracts. However, it was put to him that there was nothing in the minutes to suggest that the 2013 contract was discussed at the meeting with the Complainant. He said that he did not participate in the meetings.

It was put to Mr Kennedy that the Complainant did not have a clue that his retirement age was 65 and none of his colleagues knew that he was due to retire at 65.

Mr Kennedy said that his understanding was that in 2013 the contracts were sent out by post to all staff. The Respondent took over in 2018 and new contracts were issued to all staff. The Complainant declined to sign the contract and chose to remain on the old contract. The Respondent’s understanding was that it was the 2013 contract.

Mr Kennedy said that the Respondent employs 8-10 staff members. The Respondent’s accountant retired at 65 in or around 2020. Mr Kennedy said that he retired at 65. One month after he left, a Project Officer’s role was publicly advertised. He applied and was successful. He worked in that role on a three days per week basis. He had two one-year fixed-term contracts. When a manager left, he was approached by the Chairperson to step in as an acting manager. The charity needed him. He works on a rolling fixed-term contract basis subject to termination on a three-months’ notice. Mr Kennedy said that the position was now advertised to be filled on a permanent basis.

Mr Kennedy said that there is nobody over the age of 65 working for the Respondent except for him. One employee retired at 65 in January 2025.

Mr Kennedy said that the Respondent is funded by the Local Authority and every year he has to apply for funding. He conceded that there is no conditionality regarding retirement age in the context of funding.

In reply to SIPTU’s query whether the Complainant’s job ceased when he retired, Mr Kennedy said that the Local Authority has now arranged for another person from another charitable organisation to do the Complainant’s job. He added that, in his view, it was unlikely that the Respondent would get funding for the role.

Summary of direct evidence and cross-examination of Ms Healy, Chairperson the Board of the LICP

Ms Healy said that she is a voluntary chair of the Board of Management of the Respondent.

Ms Healy said that the Board wrote to the Complainant regarding his retirement, and it received a query from SIPTU regarding same.

Ms Healy said that the Board was aware that the Complainant declined to accept the 2018 contract, and it was assumed and accepted that he wished to remain on the conditions of the 2013 contract. When the Complainant insisted that he worked under the old job description, the Respondent understood that it was the 2013 contract.

Ms Healy said that as far as she was aware St. Mary’s (pre-TUPE) retirement age was 65.

Ms Healy said that she had a conversation with the Complainant regarding his retirement.

In cross-examination, Ms Healy said that the HR group was established to look at all contracts of all staff that transferred from St. Mary’s to the Respondent and at the introduction of an incremental pay scale. All employees accepted the new contract except the Complainant. The Complainant chose to remain on his St. Mary’s contract, which was understood to be the 2013 contract. This contract was on file at the time of TUPE.

Ms Healy said that the Respondent’s understanding was that there was another TUPE in 2013, hence the new contract at that time. The Respondent believed these were the terms of employment after TUPE.

Ms Healy said that a copy of the handbook was sent to the Complainant in 2020.

Ms Healy said that the Complainant would have been asked to undertake new duties in 2018 as his role was enhanced.

SIPTU, on behalf of the Complainant, submits as follows.

The Complainant commenced work for the Respondent on 24 November 1998 as Estate Management Worker. The Respondent terminated the Complainant’s employment on the 15 July 2023.

The Respondent notified the Complainant of his termination date of 15 July 2023 on 21 June 2023 equating to three weeks and three days’ notice of termination. However, as the Complainant commenced his employment in 1998 and had no break of service with the Respondent, under the terms of the Minimum Notice and Terms of Employment Acts, 1973-2005, eight weeks’ notice was the statutory minimum notice period.

Furthermore, the Respondent alleged that the Complainant had contracted to have his employment terminated on reaching the age of 65, however this was never the case.

The Complainant is seeking compensation for his financial loss accruing from acts and/or omissions of the Respondent.

On or around 8 June 1998 the Complainant was offered, and signed, a contract of employment. He then signed an amendment to same contract dated 8 June 1999. The Complainant signed a further contract dated 24 November 2008 with his terms and conditions of employment with the Respondent in the role of Estate Management Worker.

The Respondent is now relying on an unsigned contract of employment, dated 1 January 2013, which includes a retirement clause, and a paragraph that states that that contract of employment supersedes any previously signed terms and conditions of employment between the Complainant and the Respondent. However, the Complainant refused to sign said terms and conditions, and the copy remains unsigned.

On receipt of the termination letter dated 21 June 2023, setting out that the Complainant ‘s employment with the Respondent would cease on 15 July 2023, the Complainant wrote to Mr Kennedy, Manager to clarify what he believed was an error made by the Respondent.

On 6 July 2023, SIPTU wrote to the Respondent seeking clarity on behalf of the Complainant.

On 7 July 2023, the Respondent wrote to SIPTU in response detailing a TUPE in 2020 and how the Complainant refused to sign new terms and conditions, the Respondent further reiterated how the Complainant’s contracts were ‘subject to funding,’ as though he had not been granted a contract of indefinite duration after four years.

Further to this, the Complainant contacted the Respondent’s Manager, Pat Kennedy on 31 January 2023 who ensured the Complainant was listed on the Company insurance policy on the 31 January 2023. Since the cessation of his employment, the Complainant has received notices of outstanding payment from Limerick City and County Council regarding a fire service charge resulting from a petrol spillage from his work vehicle on 28 April 2023 during his working hours.

SIPTU submits that there was no justification or fairness on part of the Respondent in dismissing the Complainant on the basis on an unsigned contract of employment, over the signed contracts of employment. SIPTU submits that there was no engagement with the Complainant. Furthermore, the Respondent has left the charge of €550 outstanding for the Complainant to pay.

CONCLUSION

SIPTU submits that the treatment of the Complainant both prior to and during his dismissal, was as a direct result of the Respondent failing to employ fair and just procedures in determining the Complainant’s employment and dismissal process.

SIPTU submits that the conduct of the Respondent is characterised by a level of unreasonableness, manifested in its actions throughout, which must be held unfair.

At the adjudication hearing, SIPTU asserted that the Complainant did not receive a copy and did not sign the 2013 contract. It was asserted that, at the meeting in March 2023, it was “thrown” at the Complainant that he was due to retire at 65. For that reason, the email of March 2023 cannot be considered as giving the Complainant notice of termination of his employment.

The Complainant agreed that he signed the 2008 contract, which does not address the retirement age. The Complainant contended that he did not receive a copy of the 2013 contract. The Complainant asserted further that he did not receive a copy of the 2018 contract and in 2020 he declined to sign the new contract after TUPE. He elected to stay on his old contract, which he believed was 2008 contract and the Respondent understood to be 2013 contract.

Summary of direct evidence and cross-examination of the Complainant’s evidence

The Complainant said that his initial fixed-term contract was subject to funding as between 1999-2008 his role was partly funded. He then signed a contract of indefinite duration.

The Complainant said that he had one meeting with HR at which he was asked how he got on, it was a general conversation over a cup of tea.

The Complainant said that he did not know about the retirement age, had he known, he would have brought it to SIPTU.

The Complainant said that the meeting in March 2023 was a general regular meeting. When he asked for 2-3 days off, Mr Kennedy said that he was to take as much as he needed as he would be retiring in July. The Complainant said that it was the first time he heard of that. He went to SIPTU for advice. Then he wrote to the Respondent regarding the extension.

In cross-examination the Complainant said that he did not see the contract of 2013 until March 2023. All terms of employment are the same other than the retirement clause. He said that it is incorrect that he relied on this contract for his rate of pay, as his rate of pay did not change. He said that at the meeting, Mr Kennedy told him that he was to retire in July. Mr Kennedy also told him to write to him asking for an extension and he would put it to the Board.

The Complainant agreed that he received notice of the retirement in March 2023.

The Complainant was asked if he was aware that the matter of his retirement was discussed at the HR Sub-Group meeting on 13 June 2023. He said that he was not.

The Complainant said that SIPTU contacted the Respondent on his behalf on 6 July 2023 and received a reply on 7 July 2023 stating that the funding the Respondent received for his position ceased on 15 July 2023 and that his role would not be replaced.

The Complainant said that he understood that the 2008 contract was “subject to funding”. The Complainant said that he was not aware that funding was to cease. He said that nobody mentioned funding to him, he was only told that the Respondent’s policy was to retire staff at 65, funding was not an issue.

The Complainant said that the accountant worked only a couple of hours a week for the Respondent.

With regards to the meeting with the HR sub-group, the Complainant said that it was a general conversation about what his role entailed. He told the group that it was not an office based 9am-5pm role, it included evening work. He said that no job description was put to him, it was a general conversation over a cup of tea.

LOSS

The Complainant gave evidence that he has no job. He said that he did apply for some roles, but he stopped looking for a job when he got his State pension in July 2024.

The Complainant was given an opportunity to furnish post-hearing any evidence of his efforts to mitigate his loss. On 6 March 2025, an email was received with some seven-job application through a recruitment website, all on 4 January 2024.

Unfair Dismissals Act

1.

“dismissal”, in relation to an employee, means—

(a) 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,

Exclusions.

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,

Unfair dismissal.

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

….

(ee) the age of the employee,

The relevant sections of the Act, set out above, make it clear that a dismissal is unfair unless shown to be otherwise, having regard to other relevant provisions set out in the Act. In the instant case, the Respondent relies on section 2(1)(b) of the Act asserting that the Complainant was simply retired upon reaching normal retiring age.

If an employer wishes to rely on section 2(1)(b), It is necessary to firstly determine whether the Respondent has established that it had “the normal retiring age” for employees in similar employment to the Complainant within the meaning of Section 2(1)(b) of the Unfair Dismissals Act 1977, and if so, whether his employment was lawfully terminated upon reaching that age thereby excluding him from pursuing this complaint of unfair dismissal.

In McQuaid O'Flanagan Warehousing & Transport Limited v Peter Smith UDD2340 the Labour Court held that

‘It seems to the Court that if an employer wishes to rely on 2. 2(1)(b), there can be no ambiguity or doubt about what is, or is not, a normal retiring age. While the Respondent is correct to say that the Act does not prescribe that any such age be set out in writing, it is axiomatic that if something is to be described as ‘normal’, it must be notorious, clearly understood and not open to misrepresentation or misinterpretation. None of these requirements have been met by the Respondent and they cannot rely upon an alleged normal retiring age, as a result.’

In Institute of Technology Sligo v John Comiskey UDD2140, the Labour Court held as follows,

‘The Oxford English Dictionary defines the word ‘normal’ as meaning ‘conforming to standard, usual, regular, typical’. Taking that definition into account, the plain meaning of Section 2(1)(b) can reasonably be understood as excluding from the protections of the Act those persons who have reached the age at which employees in similar employments usually, typically, regularly or normally retire.’

In Delaney v Electrical Contractors Safety & Standards Association Limited UD1322/2003 the Employment Appeals Tribunal stated that

‘the expression ‘normal retiring age’ conveys the idea of an age at which employees in the group can reasonably expect to be compelled to retire, unless there is some special reason in a particular case for a different age to apply. ‘Normal’ in this context is not a mere synonym for ‘usual*. The word ‘usual’ suggests a purely statistical approach by ascertaining the age at which the majority of employees actually retire, without regard to whether some of them may have been retained in office until a higher age for special reasons - such as a temporary shortage of employees with a particular skill, or a temporary glut of work, or personal consideration for an employee who has not sufficient reckonable service to qualify for a full pension. The proper test is in my view not merely statistical. It is to ascertain what would be the reasonable expectation or understanding of the employees holding that position at the relevant time. ‘

An employer may provide for a mandatory retirement age explicitly in the employee's employment contract, or it may be implied into the employment relationship by policy or by custom and practice. Inclusion of such a clause within an employment contract may evidence an employer’s “normal retiring age” along with other evidence such as the date of maturity of an applicable company pension scheme, correspondence confirming same and custom and practice. 

With regards to the Complainant’s contract, there was no dispute that the Complainant signed his contracts in 1998, 1999, and in November 2008. There were a number of changes and transfers of undertakings along the way and when the Respondent took over the business, the Complainant chose to remain on his existing contract. The Respondent relies on a contract that, it asserted, was given to the Complainant in 2013, which stipulated that the retirement age was 65. The Respondent asserted that, on taking over the business, it assumed that the most recent contract the Complainant had signed was the 2013 one. The Respondent did not have a copy of that contract that was signed by the Complainant, or indeed on behalf of the Respondent. The Respondent conceded that the contract was never signed by the Complainant but alleged that the Complainant relied upon this contract for the purposes of his pay.

The Complainant, on the other hand denied that he had ever received the 2013 contract and insisted that his terms of employment were those he signed in 2008. The Complainant submitted that the contract of employment upon which he was employed in 2008 did not contain a retirement age. The Complainant’s evidence was unchallenged when he said that he did not rely on the 2013 contract for the purposes of his pay as his pay did not change.

I note that the Respondent exhibited also a copy of the Handbook, which, however, is silent of the retirement age.

It is significant that I have not been furnished with a signed contract of employment specifying the Complainant’s mandatory retirement age nor have I been supplied with a copy of a pension scheme to substantiate the Respondent’s position that 65 is the normal retirement age for staff in the category the Complainant was in. 

In Molloy v Connacht Gold Co-Operative Society Ltd UD 891/2009, although there was no employment contract containing a retirement clause, the employer had an established custom and practice whereby the vast majority of its employees retired at the age 65 and the pension scheme which applied had a normal pension age of 65 apart from “exceptional circumstances”, where the respondent at its discretion could opt to continue the employee in employment past that age.

As to whether the Respondent has established “the normal retiring age” for employees in similar employment to the Complainant by way of custom and practice, it is noted that the Respondent was unable to provide any examples of any other full-time workers retiring at the age of 65 at that time, including any other employees undertaking similar work to the Complainant. It appears that the Respondent’s accountant, who worked in a part-time capacity (as per the Complainant’s uncontested evidence, “for a couple of hours a week”) chose to retire at 65.

I note that Mr Kennedy retired at 65. However, one month after his retirement he returned to work for the Respondent on a project, albeit in a fixed-term basis for some two years. He then was offered and accepted a managerial position on, what was described as, a 3-6 months rolling contract. It was not until 2025 that this temporary arrangement was addressed, and the managerial position was advertised. However, as of the date of the hearing, Mr Kennedy remained in his position.

I note that the Respondent also said that another employee retired in January 2025 at 65. It is unclear what was the role of the employee in question or what contract the employee in question had in place.

I further note that there was a group of individuals on job initiatives whose retirement age was 66.

In Longford County Council v Neilon UDD 50/2019 the Labour Court concluded, in light of the evidence, that the Council had not been able to establish that a normal retirement age existed of which the complainant was aware or ought to have been aware. Consequently, the provisions of the subsection were not applicable to his dismissal.

There can be no ambiguity or doubt about what is, or is not, a normal retiring age. Having regard to the circumstances of this case and in the absence of a clear retirement policy applicable to the Complainant, I accept that it was not unreasonable for him to have an expectation that he would continue in employment beyond his 65th birthday. In the absence of unambiguous evidence of an established retirement age, I find that the Respondent has not shown “the normal retiring age” for employees of the Respondent “in similar employment”, and hence that WRC has jurisdiction to adjudicate upon this complaint.

Findings and Conclusions on substantive complaint

The mater for me to decide now is whether the Complainant’s dismissal was unfair. 

Section 6(1) provides: 

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6 defines the circumstances which do and do not constitute an unfair dismissal and specifically, Section 6(2) provides: 

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following: (ee) the age of the employee,  

In relation to the burden of proof, Section 6(6) provides: 

In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 8 provides for the procedure for referral of a complaint of unfair dismissal to the WRC and determination of same by an Adjudication Officer. 

It is common case that the Respondent terminated the Complainant’s employment on 15 July 2023 following his 65th birthday.  Section 6(2)(ee) of the Unfair Dismissals Act 1977 provides that dismissal on the ground of age is automatically unfair. 

Section 6(1) provides that the burden of proof rests with the Respondent to show that a dismissal was fair. 

It is clear that from March 2023 until July 2023, the Respondent’s view was that the Complainant was to retire in accordance with his contract at the age of 65. I accept that the Respondent might have been of the view that the 2013 contract applied to the Complainant. However, in the absence of any cogent evidence to support this view, I cannot accept it.

The Respondent, somewhat belatedly, in its letter dated 7 July 2023 to the Complainant’s union stated: ‘I can confirm that the funding the company receives for the position of Estate Management Worker ceases on 15 July 2023. I can also confirm that LICP will not be seeking to replace this role.’ However, the Respondent, at the adjudication hearing confirmed that while the Respondent is funded by the Local Authority, the funding does not seem to be specifically for the Complainant’s role and there was no conditionality regarding the retirement age in the context of funding.

The Respondent has not identified any grounds under which the Complainant could have otherwise been fairly dismissed or adduced evidence of same.  It follows that the Complainant’s dismissal was unfair. 

Redress

Redress for unfair dismissal.

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following F50[the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c)

(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.]

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, 

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

The matter of re-instatement or re-engagement was not canvassed at hearing. I note that the Complainant is now in receipt of the State pension. In all the circumstances I am satisfied that compensation is the correct form of redress.

In awarding compensation, I am obliged to award a “just and equitable” amount of compensation in the full circumstances of the case. 

The test for a Complainant to mitigate their loss is set out in the decision of the Labour Court in Smith v Leddy UDD1974. In this case, the Labour Court determined that

‘the court expects to see that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment’

and held that if this test is not met, then this had to be reflected in the compensation awarded to a complainant. 

The decision of Coad v Eurobase UD1138/2013 outlines the duty to mitigate loss under the Act where the Tribunal noted:

‘In calculating the level of compensation, the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal is Sheehan v Continental Administration Co. Ltd. (UD858/1999) that a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. “It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.’

While the Complainant presented some evidence of his efforts to find work, I note that he made some seven attempts to secure new employment on 4 January 2024. No evidence to suggest that any other attempts were made in the period from 15 July 2023 was presented. By the Complainant’s own evidence, he stopped seeking new employment once he qualified for the State pension in July 2024.

On the basis of the evidence presented I find the Complainant has failed to produce credible evidence to me that he has made sufficiently rigorous efforts to mitigate his loss when I apply that which is set out above. The Complainant, through inaction over protracted periods, found himself unemployed for a much longer period that could otherwise have been the case had he been more diligent in seeking alternative employment. The Respondent cannot be held liable in compensation for the Complainant’s lack of effort. 

However, I am cognisant that the Complainant was dismissed through no fault of his own and he found himself in the situation where he clearly did not envisage losing his job in this manner and at his age, having worked for some 25 years with the same organisation.

For the reasons stated above I decide that this complaint is well founded. Having regard to the totality of the evidence presented, in particular the evidence regarding loss mitigation, I direct the Respondent to pay the Complainant €10,000 as just and equitable compensation for the unfair dismissal. 

SIPTU, on behalf of the Complainant, submits that on or around 8 June 1998 the Complainant was offered, and signed, a contract of employment. The Complainant worked for the Respondent from 8 June 1998 to 15 July 2023 without any break in service.

The Complainant was informed via letter dated 21 June 2023 that his employment with the Respondent would cease on 15 July 2023.

Therefore, the Respondent gave the Complainant three weeks and three days’ notice, rather than the statutory eight weeks’ notice.

The Respondent submits that the Complainant was given verbal notice of his retirement date at a meeting on 6 March 2023. The Respondent further submits that the Manager, Mr Kennedy emailed the Complainant on 8 March 2023 informing him that the Respondent’s “position is that you are due to retire on your 65th birthday.”

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, as amended obliges the Respondent to give the Complainant eight weeks’ notice of the date of termination of the contract of employment on the basis of his service.

Minimum period of notice

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Section 12 of the Act provides as follows.

12. Decision of adjudication officer under section 41 of Workplace Relations Act 2015

(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

I refer to the case of Bolands Limited (In Receivership) v Ward 1988 ILRM382 at 389 where Henchy J stated;

‘…the Act is silent as to the form of the notice of termination. The Act is concerned only with the period referred to in the notice, and it matters not what form the notice takes so long as it conveys to the employee that it is proposed that he will lose his employment at the end of a period which is expressed or necessarily implied in the notice. There is nothing in the Act to suggest that the notice given should be stringently or technically construed as if it were analogous to a notice to quit. If the notice actually given – whether orally or in writing, in one document or in a number of documents – conveys to the employee that at the end of the period expressly or impliedly referred to in the notice or notices it is proposed to terminate his or her employment, the only question normally arising under the Act will be whether the period of notice is less than the statutory minimum.’

I find that the Complainant was notified in writing on 8 March 2023 that his employment would terminate on 15 July 2023. He was, therefore, given a notice of the termination of his employment in excess of the statutory requirement.

I declare this complaint to be not well founded.

Unfair dismissal – retirement -notice