UD197/2012

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Ms V. Gates BL

Members:        Mr L. Tobin

                        Mr T. Brady

heard this claim at Dublin on 27 May

and 4 December 2013

Representation

Claimant:         Mr David O’Riordan, Sherwin O’Riordan Solicitors,

                        74 Pembroke Road, Ballsbridge, Dublin 4

Respondent:    Mr Stephen O’Sullivan BL instructed by Mr Eamonn Walsh,

           Thomas Barry & Co Solicitors, 11 St Stephens Green, Dublin 2

The determination of the Tribunal is as follows

The claimant, who was born in 1944, has worked as a clerk in or around the docks in Dublin for various employers since 1962. From 1992 to 2003 the claimant worked for a company (AC) in which the respondent held a significant shareholding. In 2003 the operations of AC transferred to the respondent and a third company. It was common case that the employees of AC had three options, namely to take an agreed redundancy package, join the respondent or join the third company. To this end the respondent and the third company entered into a collective agreement (the agreement) with SIPTU on 27 July 2003 for casual dockers and checkers employed by AC. The agreement provides for a normal retirement age of 65 years but there was no such provision in the arrangements in place in AC from 1992 to 2003.

The claimant, whose position was not covered by the agreement, was employed by the respondent from the summer of 2003 when the claimant wrote to the then managing director (TM) of the respondent on 21 August 2003 setting out the matters that he had discussed with TM in relation to his employment with the respondent. It was common case that this letter represents the claimant’s contract of employment and that there are no other documents relating to such contractual matters. This letter contains no mention of retirement age.

When he went to work for the respondent a pension arrangement was entered into on 9 December 2003. This arrangement has a normal retirement age of 65 years. Furthermore the claimant’s year of birth is given as 1946. While the claimant accepted that he signed the relevant paperwork associated with the pension scheme his position was that he did not fill out the forms and was not involved in the wrong year of birth being put on the forms.

From 1 March 2010 the claimant, together with all other employees of the respondent, went on to a three-day week and from 1 November 2010 this became a two-day week. On 3 November 2010 the managing director (MD) wrote to the claimant to advise that his retirement date was in February 2011 and that as he had accrued thirteen days annual leave it was proposed to pay him this annual leave entitlement one day a week from 6 December 2010.

Despite protests from his union representative the claimant’s employment was terminated by reason of retirement on 15 February 2011.

Determination

In the absence of a formal contract of employment, the Tribunal is satisfied that the claimant’s letter to the managing director of the respondent company dated 21 August 2003 represents the contractual arrangement between the parties. The Tribunal is further satisfied on the evidence that the respondent was aware that the claimant’s terms of employment were not covered by the agreement of 27 July 2003 and accepted the terms contained in the claimant’s letter without variation or inclusion of a term specifying a retirement age.

The Tribunal accepts that the claimant did not deliberately attempt to conceal his correct date of birth during the process of compiling the pension documentation, as at some stage during the course of his employment the claimant had also furnished to the respondent a copy of his driving licence, thereby revealing his correct date of birth.

The claimant assumed that he could continue to work after the age of 65 despite having signed pension documentation on which a retirement age was specified, as he relied upon the letter of 21 August 2003 as constituting his terms of employment into which a retirement age had not been incorporated by his employer. The Employment Equality Act, 1998 as amended by the Equality Act, 2004 prohibits discrimination on the grounds of age. However it is open to an employer to specify a retirement age for staff in a contract of employment in accordance with legislation. The Tribunal finds that the respondent imposed retirement on the claimant wherein his contract of employment, that is, the letter dated 21 August 2003 did not provide for it. Consequently, the claimant’s dismissal was unfair.

It is clear from the evidence adduced by both parties that at the date of termination of employment, the respondent was operating in challenging economic times. The claimant, together with all other employees had been placed on a three-day and then a two-day week. Taking all relevant factors into consideration, the Tribunal measures the award under the Unfair Dismissals Acts, 1977 to 2007 at €17,500-00.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)