Complainant

Respondent

Parties

Liam  Heffernan

Obelisk Communications Limited

Representatives

Self-represented

Katherine Mc Veigh BL, instructed by Jonathan Simpson, DWF(Northern Ireland) LLP

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-00071458-001

09/05/2025

The complainant, Mr. Heffernan’s case is that he was unfairly dismissed by the respondent when he reached 65 years of age on 23rd November 2024.

The respondent denies that it was an unfair dismissal as he left his employment at the normal retirement age.

Summary of Mr Heffernan’s Evidence

The complainant outlined his work history from when he started in 1976 with the Department of Posts and Telegraphs. He transferred to Telecom Eireann in 1984, to Vodafone in 2002 and then to the respondent in 2012. He said that he should be treated no less favourably than other staff allowed to stay on and he referred to Thomas Doolin v. Eir Business Eircom Limited ADJ-00045261 as a precedent. He said that Doolin was allowed to work up to 70 years of age.

He said he was in discussions with the respondent to stay on and was offered a 3-month extension. This was insufficient as he planned to stay on for 2-years. Around the time of these discussions, he was ill and was hospitalised. He was cut off from accessing his emails and informed not to use the work vehicle which was later returned.

He said after 48-years service he was being replaced by an apprentice, and felt that the respondent did not treat him well given his previous good service.  When he rejected the 3-month extension, a meeting was to be scheduled in October 2024 which never occurred due to his illness. He put into evidence a medical report which indicated that he could resume work in or around April/May 2025.

Under cross-examination by Ms. Mc Veigh, he was asked why he was disappointed when he was afforded all his entitlements. It was put to him that the respondent witnesses will give evidence of their attempts to contact him prior to his retirement date. He replied that he was entitled to compassionate leave and was then on sick leave. It was put to him that not all staff received extensions. He replied that he did not know what other staff were offered.

He was asked why he did not respond after nine attempts to contact him. He replied that he was under medical care and he should not have been contacted when on certified sick leave.

It was put to him that 65 years of age is the normal retirement age. He replied that if his terms transferred he should be entitled to work till 70 years of age as a civil servant. He was asked if he thought 70 years of age was his retirement age. He replied no.

He was asked about the retirement policy and normal retirement age which is on the company shared drive. He replied that he had no access to the shared drive. It was put to him that his extension application was assessed and reasons given as to why the 3-months was offered as an apprentice was available in his area. He replied that a 2-year extension was a reasonable request.

He was asked about a retirement function and a retirement course he attended. He replied that attending a course did not mean he had decided to retire.

He was asked about the anonymised examples put into evidence of other staff who retired at 65 years of age and if he applied to extend on 14th February 2024. He confirmed that he did apply. He was asked whether he had a conversation with Mr. White on retiring and whether he signed the contract for an extension. He replied that he did not sign.

It was put to him whether he was aware that an apprentice was recently qualified who was ready to commence in the area. He replied that he does not know about apprentices.

He was asked about measures he took to mitigate his financial loss. He replied that he was not fit to work until around April/May 2025 and he had difficulty obtaining work due to his age. He said he undertook training to drive buses and he was now in a position to undertake this work.

Summary of Mr Ciaran White’s Evidence

Mr White outlined his experience with the company and his role as Maintenance Accounts Manager. He said that staff transferred over to the company on their existing terms of employment. He said that 65 years of age was the normal retirement age and this information is on the shared drive. He confirmed that anyone who stayed on, was through a fixed term contract with the onus on employees to apply. As an apprentice was available in the area, this was why the short extension was offered. He said this allowed for sufficient time to do a handover. He said there was no other extensions granted in the complainant’s area. He said he had a discussion with the complainant on his retirement plans and that he attended the retirement course. He said he was unaware of the complainant’s grievance until the complaint form was received from the WRC. He confirmed he was offered a 3-month extension and that the complainant wanted to reconsider and he never reverted back. He said the complainant did not respond to contacts from the company. He was surprised the complainant had not found work as an engineer due to his experience and the current job market.

Under cross examination, he was asked whether a 2-year extension was reasonable and if an appropriate handover could be done in 3-months. He replied that the 3-months was offered on this basis. He was asked if the complainant carried out most of his work in Dublin. He replied that his area was Kilkenny and there is a field engineer in Dublin. He was asked if it is the policy to contact staff when they are on certified sick leave. He replied that he did not know where the complainant was at this time.

Under re-examination, he was asked whether the sick leave certificate stated that the complainant was not to be contacted. He replied that it did not. 

Summary of Ms. Marie Claire Baxter’s Evidence

Ms Baxter confirmed that she was appointed HR Business Partner in December 2023. She said the  retirement policy was already in place and is 65 years of age across the company. She said the extension applications are based on geographical succession planning. She said applications are refused if apprentices are can take over. She said the policies and procedures are on the shared drive. The complainant applied and was offered a 3-month extension. The company tried to contact him and he did not respond.  

Under cross-examination, she was asked whether it was made clear that the 3-month extension was the final offer. She replied that the rationale for the decision was set out.

Closing Statement

Ms. Mc Veigh submitted that no dismissal took place as section 2 (1) b of the Act applies as an exclusion when a worker reaches normal retirement age. The complainant was aware of his retirement date which is why he applied for an extension. He was offered an extension and he did not engage with the company after this despite attempts to contact him. Ms. Mc Veigh relied on Sean Fleming v. Instant Upright Limited ADJ-00033239 where similar circumstances arose. Without prejudice to the respondent position, she submitted that the complainant contributed to his situation by being uncontactable. Also, he had not made sufficient attempts to mitigate his loss.

The Law

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) …….

(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,

Finding

It is clear from the testimony and documentation put into evidence that the normal retirement age within the company is 65 years of age. There is an agreement within the company that extension requests can be made and this is consistent with the Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017. The complainant case is grounded on the fact that the engagement with the company on his extension was not finalised and he was ill at that time.

The respondent submitted his application was considered in accordance with normal practice. The company put into evidence other anonymised applications for extensions which were refused. In the complainant’s case, he was offered a 3-month extension. Although the complainant was unsatisfied with this, there was no evidence presented that he took steps prior to his retirement date to flag his concerns or to seek more time due to his illness. In this regard, testimony was given by the company of repeated attempts to contact him.

The approach taken by the respondent is well documented and appears to be fair. An engagement took place with the complainant and an offer was made which was reasoned in terms of succession planning. In those circumstances, and as the Code of Practice on Longer Working was adhered to, I find no basis to disapply the exclusion in the Act, once the complainant had reached normal retirement age.

For completeness, I have reviewed Doolin and I am not persuaded that it can have any bearing on this case. That was a case under the Employment Equality Act and was decided on different grounds and facts to this case.    

For the reasons outlined, I decide that the exclusion set out in Section 2(1)(b) provides that I have no jurisdiction to hear the substantive complaint. 

I find that the exclusion in Section 2(1)(b) of the Unfair Dismissals Act provides that I have no jurisdiction to hear the substantive complaint.

Unfair Dismissal, Normal Retirement