UD556/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                        CASE NO.

Rory O'Connor

- appellant                                                                                                                UD556/2013

against the recommendation of the Rights Commissioner in the case of:

Beaufield Mews Limited T/A Beaufield Mews Restaurant

- respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. M. Levey B.L.

Members:     Mr P. Pierce

                    Mr S. Mackell

heard this appeal at Dublin on 11th June 2014

Representation:

Appellant(s) : Mr. Tom O'Dwyer, SIPTU,

                       Membership Information and Support Centre, Liberty Hall, Dublin 1

Respondent(s) : In person

The determination of the Tribunal was as follows:-

This case came before the Tribunal by way of the employee appealing the decision of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 Reference R127054-UD-12/DI.

Summary of Evidence

A director of the respondent company gave evidence of the appellant’s contract of employment and company handbook making specific reference to the retirement age of 65. The company had implemented this retirement policy with other employees. The appellant had never disputed the term in his contract. The witness accepted that the appellant had not signed the contract of employment. It was agreed that some months after the appellant’s employment ended another employee reached the age of 65 and remained on in employment.

The appellant’s evidence to the Tribunal was that he had worked in the business for over thirty years. He confirmed his date of birth as May 1947. Following a period of illness he was certified fit to return to work in June 2012. He received a letter from the respondent company which indicated that he had reached retirement age of 65 in May 2012 and his employment was terminated. The appellant named an employee who remained on in employment having reached the age of 65.

Having considered all the evidence in this case the Tribunal finds by majority, with Mr. Mackell dissenting, that the dismissal was not unfair.

Dissenting Opinion

The obligation on behalf of the respondent in this case was to show that they acted reasonably and within the law in dismissing the appellant.

The respondent claimed that they provided the appellant with a contract of employment that stipulated that he would retire from the business upon reaching the age of 65. The appellant disputed this and stated that there was no written contract for the previous 26 years of his employment with the respondent and a written contract was only provided to him following a disagreement with his employer over a separate issue in 2008. This was not disputed. He claimed that he neither read nor signed the contract. The appellant suffered a life threatening illness and was absent from work in October 2011 until June 2012. When he returned to work he was informed that he had to leave the business shortly thereafter at age 65.

The respondent claimed that his dismissal was solely due to him reaching the age of 65. The appellant disputes this.

In this case the respondent stated that there was a retirement policy of 65 years at the restaurant given the physical nature of a waiter’s job. The respondent claimed that it was appropriate that staff retire at this age because the work was physically demanding. However the respondent also informed the Tribunal that shortly after the appellant was dismissed another member of staff was allowed to continue working in the business beyond age 65 and is currently still working there at age 67.

The respondent also advised that there were no formal procedures in place for the appellant to appeal the decision to dismiss. Dismissal of a member of staff who worked for 30 years for the business is a serious matter. A formal process should have been in place for the appellant to appeal the decision. On this point alone I find the dismissal unfair.

Determination

The appellant was provided with a contract of employment in 2008. He claimed he never read or signed the contract. There was a retirement policy of 65 years at the restaurant given the physical nature of the job. The appellant had a life threatening illness and was certified fit to return to work in June 2012 when he would be past his retirement age of 65 years.

The retirement age of 65 years was clearly stated in the contract. The retention of another waiter after reaching age 65 years of age is of no significance in this context. It occurred after the appellant’s retirement. The Tribunal noted that the role of the other employee was more of a supervisory role and the employer relied upon the employee to lock up the premises and take over in the absence of the employer which was a requirement of the business at the time. The Tribunal also noted that the normal retirement age of 65 years remains the policy in the respondent company.

The appeal under the Unfair Dismissals Acts, 1977 to 2007 fails and the decision of the Rights Commissioner is upheld.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)